Health IT Law Blog : Health IT Law Blog : Post & Schell: Law Firm : HIT & Electronic Health Records

On December 18, 2010, President Obama signed into law the Red Flag Program Clarification Act of 2010, which narrows the definition of a creditor for purposes of implementing the so-called “red flags rule,” i.e., Federal guidelines for use by financial institutions and creditors in establishing policies and procedures to mitigate identity theft risks."

The new law ended years-long dispute between the Federal Trade Commission (charged with enforcement of the Red Flags Rule program) and healthcare providers reluctant to take on an additional administrative and regulatory burden.

Via Healthcare IT News:

Red Flag Program Clarification Act of 2010 (Bill, S. 3987) sponsored by Senators John Thune (R-SD) and Mark Begich (D-AK), was scheduled to go into effect on Dec. 31. It was first introduced in the Senate on Nov. 30 and unanimously passed on the same day. The Senate passed the bill by voice vote on Dec. 7.

The Red Flags rule was developed under the Fair and Accurate Credit Transactions Act, in which Congress directed the FTC and other agencies to develop regulations requiring "creditors" and "financial institutions" to address the risk of identity theft. The resulting Red Flags Rule requires all such entities that have "covered accounts" to develop and implement written identity theft prevention programs to help identify, detect and respond to patterns, practices or specific activities – known as "red flags" – that could indicate identity theft.

The Red Flag Program Clarification Act modified the regulation in a way that exempted those creditors from the Red Flags Rule program which "advance funds on behalf of a person for expenses incidental to a service provided by the creditor to that person."

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On the heels of FTC's report on web privacy, the U.S. Department of Commerce released its own findings on the state of online privacy and issued recommendations for how to address the growing privacy concerns of consumers while maintaining the Internet platform which supports creativity, innovation, economic growth and job creation. The Commerce Department offered U.S. lawmakers several guidelines aimed at achieving the objective above:

• Consider Establishing Fair Information Practice Principles comparable to a “Privacy Bill of Rights” for Online Consumers
• Consider Developing Enforceable Privacy Codes of Conduct in Specific Sectors with Stakeholders; Create a Privacy Policy Office in the Department of Commerce
• Encourage Global Interoperability to Spur Innovation and Trade
• Consider How to Harmonize Disparate Security Breach Notification Rules
• Review the Electronic Communications Privacy Act for the Cloud Computing Environment.

The Wall Street Journal called these proposals a "turning point," marking the administration's shift away from self-regulation in the online industry. The Journal also noted that future legislative action on this issue is likely to happen as soon as 2011, and that such legislation would enjoy rare bipartisan support in Washington.

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 Via Democrat and Chronicle (Rochester):

The New York state Department of Health and a public-private partnership called New York eHealth Collaborative, or NYeC (pronounced "nice"), recently announced plans to spend $129 million in state and federal money to create a statewide network for electronic medical records, to be complete in 2014. Like the highways, they envision the network as a public utility that will allow medical providers anywhere in the state to view — with your permission — a list of your medications, any allergies and any recent X-rays or other tests that could help guide your care. The e-records network would be the largest in the country, dwarfing networks of other states and the Veterans Administration.

The planned statewide network, called Statewide Health Information Network for New York or SHIN-NY, is intended to serve more than 200 hospitals, thousands of medical practitioners and up to 20 million patients a year.

You can read more about NYeC here.
 

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On December 8, 2010, President's Council of Advisors on Science and Technology (PCAST) issued its report on the importance of widespread adoption and use of health IT to improve healthcare delivery and reduce costs. The report concluded that:

information technology can help catalyze a number of important benefits including improved access to patient data, which can help clinicians as they diagnose and treat patients and patients themselves as they strive to take more control over their health; streamlined monitoring of public health patterns and trends; an enhanced ability to conduct clinical trials of new diagnostic methods and treatments; and the creation of new high­technology markets and jobs. Health information technology can also help support a range of healthcare ­related economic reforms needed to address our Nation’s long­term fiscal challenges.

PCAST also recommended "nationwide adoption of a universal exchange language for healthcare information and a digital infrastructure for locating patient records while strictly ensuring patient privacy," and tasked CMS and ONC with developing guidelines "to spur adoption of such a language and to facilitate a transition from traditional electronic health records to the use of healthcare data tagged with privacy and security specifications."

You can view PCAST's press release here.

You can view PCAST report here.

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In a highly anticipated move, on December 1, 2010, the Federal Trade Commission (FTC) released its report and recommendations regarding protecting personal information gathered online. The FTC recommended moving away from self-regulation by the industry towards a more European, “privacy-by-design” approach, which offers a much greater degree of protection to individuals, including by requiring businesses collecting data online to build privacy protections into their everyday business practices and retain data on consumer preferences and online browsing activity only as long as needed and deleting data on a regular basis.  

While this privacy framework may not be enforceable on its own, FTC’s recommendations therein are expected to be the basis of a broader legislative action. A comprehensive data privacy bill has been circulating in Congress for some time now. For example, Rep. Bobby Rush (D-IL), Rep. Rich Boucher (D-VA), Rep. Joe Barton (R-TX) and Senators Mark Pryor (D-AR) and John Kerry (D-MA) have been working on legislation regulating and protecting an individual’s personal information. In fact, according to Rep. Joe Barton, a key figure on the Energy and Commerce Committee of the U.S. House of Representatives, privacy legislation is expected to advance despite the takeover of the House by the Republicans.

You can view the full report here.

You can view FTC's press release here.

"Agency Proposes ‘Do Not Track’ Option for Web Users," New York Times (December 1, 2010).

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