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

Published date01 September 2011
Date01 September 2011
A Proposed National Health
Information Network Architecture
and Complementary Federal
Preemption of State Health
Information Privacy Laws
John W. Hill,
Arlen W. Langvardt,
Anne P. Massey,
and Jonathan E. Rinehart
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
In terms of its cost, politics, quality, and efficiency, health
care is a national issue
that seriously threatens the U.S. economy.
r2011 The Authors
American Business Law Journal r2011 Academy of Legal Studies in Business
American Business Law Journal
Volume 48, Issue 3, 503–595, Fall 2011
Arthur M. Weimer Chair in Business, Professor of Accounting, and Life Sciences Research
Fellow, Kelley School of Business, Indiana University.
Professor of Business Law, Eveleigh Professor of Business Ethics, and Life Sciences Research
Fellow, Kelley School of Business, Indiana University.
Dean’s Research Professor, Professor of Information Systems, and Life Sciences Research
Fellow, Kelley School of Business, Indiana University.
J.D., 2010, Maurer School of Law, Indiana University, M.B.A., 2010, Kelley School of
Business, Indiana University.
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.&POLY159, 159–65 (discussing problems with medical errors, health care
cost, medical malpractice, and archaic health information systems).
Elenora E. Connors & Timothy M. Westmoreland, Legal Solutions in Health Reform: Introduc-
EO. L. (2009), available at http://www.rwjf.org/files/research/39415.introduction.pdf.
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-
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.
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.
When it comes to health
care reform, however, questions of policy and law often overlap. Such is the
case with a NHIN.
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.
HIT holds great
potential for improving the flow of information necessary for high-quality
health care.
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.
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
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.
See, e.g., Hill et al., supra note 1, at 204–10.
Connors & Westmoreland, supra note 2, at 1.
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).
Connors & Westmoreland, supra note 2, at 12.
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-
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
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.
Second, for a NHIN
to be effective it must be accompanied by other reforms.
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),
represent a huge legal barrier to a NHIN.
There is general consensus
that the movement toward widespread implementation of e-health must
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
MED.INFORMATICS ASSN13, 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].
Hill et al., supra note 7, at 41–43.
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.&POLY91.
Hill et al., supra note 7, at 23–24. See also Mark A. Rothstein, Health Privacy in the Electronic
EGAL MED.487 (2007) (discussing certain privacy issues that should be addressed
before adopting a NHIN).
Sarah Rubenstein, Next Step Toward Your Digitized Health Records,WALL ST. J., May 9, 2005,
at B1.
2011 / National Health Information Network Architecture 505

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