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8 tweets,
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1/
An interesting wrinkle of #CuresAct
Adhering to contractual requirements is *not* one of the 7 exceptions to information blocking.
Tagging the smartest health policy lawyers I know:
@HealthPrivacy @JodiDaniel @SavageLucia
(Joy Pritts has no Twitter handle?)
An interesting wrinkle of #CuresAct
Adhering to contractual requirements is *not* one of the 7 exceptions to information blocking.
Tagging the smartest health policy lawyers I know:
@HealthPrivacy @JodiDaniel @SavageLucia
(Joy Pritts has no Twitter handle?)
2/
Historically, when BAA terms or other contractual terms conflicted with rights possible under #HIPAA, BAA terms have been deemed to hold.
E.g., famously, even though a clearinghouse is a HIPAA CE & has all the rights and obligations of a CE...
Historically, when BAA terms or other contractual terms conflicted with rights possible under #HIPAA, BAA terms have been deemed to hold.
E.g., famously, even though a clearinghouse is a HIPAA CE & has all the rights and obligations of a CE...
4/
Cures presumes information sharing for permitted purposes & calls information blocking practices that inhibit such sharing.
So what happens when obligations under Cures conflict with BAA or other contractual terms?
Cures presumes information sharing for permitted purposes & calls information blocking practices that inhibit such sharing.
So what happens when obligations under Cures conflict with BAA or other contractual terms?
5/
To keep this simple, when a *patient* requests patient access rights of an HIE or a Clearinghouse, but the BAA by which data were received allows only specific actions, which do not include patient access the Actor has a choice between:
To keep this simple, when a *patient* requests patient access rights of an HIE or a Clearinghouse, but the BAA by which data were received allows only specific actions, which do not include patient access the Actor has a choice between:
6/
(a) Denying the request in accordance with the BAA but in contravention of Cures & enabling regulation, & being subject to information blocking penalties OR
(b) Responding to the request, supporting Cures, but potentially violating contractual obligations
(a) Denying the request in accordance with the BAA but in contravention of Cures & enabling regulation, & being subject to information blocking penalties OR
(b) Responding to the request, supporting Cures, but potentially violating contractual obligations
7/
It could be argued that Congress preempts private contractual law here -- that the plain intent of Congress that the nation's interest in exchange, access & use for EHI is so compelling that when private contracts conflict, the anti-infoblocking interest rules.
It could be argued that Congress preempts private contractual law here -- that the plain intent of Congress that the nation's interest in exchange, access & use for EHI is so compelling that when private contracts conflict, the anti-infoblocking interest rules.
8/
But this has never been adjudicated, Congress didn't explicitly preempt, and the rulemaking is silent on this issue *except* through not contemplating contractual adherence as one of the allowed exceptions.
It's a puzzle.
🤷♂️
But this has never been adjudicated, Congress didn't explicitly preempt, and the rulemaking is silent on this issue *except* through not contemplating contractual adherence as one of the allowed exceptions.
It's a puzzle.
🤷♂️
