A Proposed National Health Information Network Architecture and Complementary Federal Preemption of State Health Information Privacy Laws

• Published date: 01 September 2011
• Author: Arlen W. Langvardt,Jonathan E. Rinehart,John W. Hill,Anne P. Massey
• Date: 01 September 2011
• DOI: http://doi.org/10.1111/j.1744-1714.2011.01120.x

A Proposed National Health

Information Network Architecture

and Complementary Federal

Preemption of State Health

Information Privacy Laws

John W. Hill,

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Arlen W. Langvardt,

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Anne P. Massey,

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and Jonathan E. Rinehart

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INTRODUCTION

As evinced by the current national debate, the U.S. faces a health care crisis

of monumental proportions, with complex issues of access, quality, and

affordability.

1

In terms of its cost, politics, quality, and efficiency, health

care is a national issue

2

that seriously threatens the U.S. economy.

3

r2011 The Authors

American Business Law Journal r2011 Academy of Legal Studies in Business

503

American Business Law Journal

Volume 48, Issue 3, 503–595, Fall 2011

n

Arthur M. Weimer Chair in Business, Professor of Accounting, and Life Sciences Research

Fellow, Kelley School of Business, Indiana University.

nn

Professor of Business Law, Eveleigh Professor of Business Ethics, and Life Sciences Research

Fellow, Kelley School of Business, Indiana University.

nnn

Dean’s Research Professor, Professor of Information Systems, and Life Sciences Research

Fellow, Kelley School of Business, Indiana University.

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J.D., 2010, Maurer School of Law, Indiana University, M.B.A., 2010, Kelley School of

Business, Indiana University.

1

See, e.g., John W. Hill et al., Law, Information Technology, and Medical Errors: Toward a National

Healthcare Information Network Approach to Improving Patient Care and Reducing Malpractice Costs,

2007 U. ILL.J.L.TECH.&POL’Y159, 159–65 (discussing problems with medical errors, health care

cost, medical malpractice, and archaic health information systems).

2

Elenora E. Connors & Timothy M. Westmoreland, Legal Solutions in Health Reform: Introduc-

tion,G

EO. L. (2009), available at http://www.rwjf.org/files/research/39415.introduction.pdf.

3

Diana Manos, GAO: Healthcare Costs Threaten to Undo American Economy,HEALTHCARE FIN.

NEWS, Jan. 31, 2008, available at http://www.healthcarefinancenews.com/news/gao-healthcare-

costs-threaten-undo-american-economy.

Electronic health care (e-health) applications are proposed as a partial

solution, and increased use of health information technology (HIT) is a

common element of most serious U.S. health care reform proposals.

4

At

their zenith, such applications would include a national health information

network (NHIN) that holds great potential for improving the quality and

efficiency of health care while lowering its cost.

5

When it comes to health

care reform, however, questions of policy and law often overlap. Such is the

case with a NHIN.

6

Two major, interdependent impediments to a fully operational

NHIN are the lack of rapid progress, given the current evolutionary

approach to NHIN architecture, and the tension between operational

efficiency and patients’ privacy rights in their health information. The

resolution of this tension depends upon the rationalization of myriad

disparate state privacy laws layered upon federal law.

7

HIT holds great

potential for improving the flow of information necessary for high-quality

health care.

8

As Congress and the administration struggle to find cost sav-

ings in health care expenditures, while increasing access for the uninsured

and improving quality, a NHIN should play an integral role.

9

A NHIN has been described as the relatively seamless electronic flow

of patient information for national interoperability among hospitals, out-

patient clinics, and external laboratories, allowing clinicians to have access

to patients’ longitudinal test results on a twenty-four-hour-seven-days-

a-week basis from virtually any location. The benefits include reductions of

redundant tests, delays, costs associated with results reporting, and errors.

Interoperability with pharmacies would enable the formation of complete

medication lists and would reduce duplicate therapies, drug interactions,

and other adverse drug events. A NHIN would bring attendant pharmacy

4

Deven Mcgraw,L egal Solutions in Health Reform: Privacy and Health Information Technology,GEO.

L. (2009), available at http://www.rwjf.org/files/research/39409.privacy.final1.pdf.

5

See, e.g., Hill et al., supra note 1, at 204–10.

6

Connors & Westmoreland, supra note 2, at 1.

7

John W. Hill et al., Bottom-Up or Top-Down? Removing the Privacy Law Obstacles to Healthcare

Reform in the National Healthcare Crisis,84I

ND. L.J. SUPP.23, 23–24 (2009).

8

Connors & Westmoreland, supra note 2, at 12.

9

See, e.g., Anne Llewellyn, Three Pointson Reform: Cost, Quality and Access,CASE IN POINT WEEKLY

(2009), http://www.cipweekly.com/annes_newsletter/three-points-on-reform-cost-quality-and-

access/.

504 Vol. 48 / American Business Law Journal

benefits of automated refill alerts, easy clinician access to prescription

refills, identification of patients affected in the event of drug recalls, and

detection of drug side effects among broad patient populations. Provider–

provider interoperability would save time in handling referrals and chart

requests, and interoperable electronic medical records (EMRs) could be-

come building blocks in a nationwide network for assembling and distrib-

uting up-to-the-minute health studies showing which treatments work

best.

10

Despite these benefits, progress toward a NHIN has been slow for

two reasons. First, past and present national administrations have em-

braced a bottom-up, evolutionary approach to the development of NHIN

architectureFan approach that has yet to prove efficacious or to resolve

the privacy law tensions that interoperability causes.

11

Second, for a NHIN

to be effective it must be accompanied by other reforms.

12

Among these

reforms is the need to revise the various federal and state laws that pertain

to the privacy of patients’ protected health care information (PHI),

13

which

represent a huge legal barrier to a NHIN.

14

There is general consensus

that the movement toward widespread implementation of e-health must

10

Hill et al., supra note 1, at 197–202. See also Basit Chaudhry et al., Systematic Review: Impact of

Health Information Technology on Quality, Efficiency, and Costs of Medical Care, 144 ANNALS INT.

MED.742, 743–44 (2006), available at http://www.annals.org/content/144/10/742.full.pdf; Jeffrey

Daigrepont, Information Technology Focused Alliances,in THE COKER GROUP,PHYSICIAN ENTREPRE-

NEURS:STRENGTH IN NUMBERS 239, 247 (2008); Blackford Middleton et al., Accelerating U.S. EHR

Adoption: How to Get There FromHere; Recommendations Based on the 2004 ACMI Retreat,12J.A

M.

MED.INFORMATICS ASS’N13, 14–15 (2005); Jan Walker et al., The Value of Health Care Information

Exchange and Interoperability,H

EALTH AFFS., Jan. 19, 2005, at W5-10, W5-13, available at http://

content.healthaffairs.org/cgi/reprint/hlthaff.w5.10v1; Samuel J. Wang et al., A Cost-Benefit Anal-

ysis of Electronic Medical Records in Primary Care, 114 AM.J.MED. 397, 398 (2003); William

Holgerson, Avoiding Pitfalls to Implementation of eHealth Solutions, Keynote Address at the

Harvard Medical School Seminar: Patient-Centered Computing and eHealth: State of the Field

(Apr. 28–30, 2006) [hereinafter Harvard Seminar].

11

Hill et al., supra note 7, at 41–43.

12

John W.Hill et al., L aw and the Healthcare Crisis: The Impactof Medical Malpractice and Payment

Systems on Physician Compensation and Workload as Antecedents of Physician ShortagesFAnalysis,

Implications and Reform Solutions, 2010 U. ILL.J.L.TECH.&POL’Y91.

13

Hill et al., supra note 7, at 23–24. See also Mark A. Rothstein, Health Privacy in the Electronic

Age,28J.L

EGAL MED.487 (2007) (discussing certain privacy issues that should be addressed

before adopting a NHIN).

14

Sarah Rubenstein, Next Step Toward Your Digitized Health Records,WALL ST. J., May 9, 2005,

at B1.

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