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ILHIE Legal Task Force Meeting Minutes - March 3 2011 

ILHIE Legal Task Force Executive Committee Meeting

March 3, 2011

In-person Attendees:

  • Bernadette Broccolo, McDermott, Will & Emery
  • Laurel Fleming, Northwestern Medical Faculty Foundation
  • Maria Pekar, Loyola University Health Syste

    Office of Health Information Technology

    • Mark Chudzinski
    • Pamela Dones
    • Lindsay Kessler (by phone)
    • David Kim
    • John Lekich
    • Kathleen Salzer (by phone)
    • Payal Shah (by phone)

      Attendance by Phone:

      • Cliff Berman, SXC Health Solutions Corp.
      • Mark Deaton, Illinois Hospital Association
      • Patricia King, Swedish Covenant Hospital
      • Patricia Foltz, Anderson, Rasor & Partners, LLP
      • Marilyn Lamar, Liss & Lamar
      • Mary Lucie, Northwestern Memorial Hospital
      • Anne Murphy, Holland & Knight
      • Renee Popovits, Popovits & Robinson
      • Wendy Rubas, Central DuPage Hospital
      • Maia Thiagarajan, Ingalls Health System
      • Marilyn Thomas, IL Dept HFS (Springfield)

      Mark Deaton, co-chair of the Executive Committee, opened the meeting at 1:00 p.m. hosted by OHIT at the State of Illinois J.R. Thompson Center in Downtown Chicago, with a video link to the Bloom Building in Springfield and a telephone conference call-in number. It was noted that notice of the meeting and the agenda were posted on the OHIT Web site and at the Chicago meeting location no later than 48 hours prior to the meeting. Roll was taken, and the ability of those attending by telephone to hear and participate was confirmed.

      Mark Deaton postponed the approval of the minutes from the previous two meetings until the next Executive Committee meeting.

      Mark Chudzinski, General Counsel of OHIT, provided an OHIT update.

      • Governor Quinn has appointed 8 of the 9 Board members for the IL HIE Authority, and they were submitted to the Illinois Senate for confirmation on February 16, 2011. An Executive Director has not been appointed. It is anticipated the new Authority will have its inaugural meeting by the end of April.
      • OHIT's CTO, Pat Cunningham, has resigned. OHIT is actively seeking a replacement. Some delay in the issuance by OHIT of its HIE procurement RFP is anticipated.
      • Surescritpts announced on Tuesday, February 15, 2011, the launch with American Academy of Family Physicians of "AAFP Physicians Direct", a nationwide service for clinical information exchange (direct messaging). OHIT is carefully reviewing it plans for development and implementation by the State of HIE capacity in respect of the changing commercial environment for HIE services and a desire to avoid the use of limited public sector resources for the creation of duplicative capacity.
      • OHIT held a meeting on January 27, 2011, regarding the formation of a new Statewide HIE Alliance Work Group, with seven members who intend to provide local/regional HIE services:
        • Central Illinois HIE (CIHIE) - Peoria
        • Southern Illinois HIE (HIESI) – Carbondale
        • Illinois Critical Access Hospital Network (ICAHN)
        • Illinois Health Exchange Partners – East St. Louis
        • Lincoln Land Health Information Exchange (LLHIE) – Springfield
        • MetroChicago Health Information Exchange (MC-HIE – Chicago
        • Northern Illinois Health Information Exchange (NIHIE) – Rockford
      • Two or three local/regional HIEs will be providing some HIE functionality during 2011
      • HB1338, the Immunization Data Registry Act, has been introduced in the Illinois General Assembly. It changes the current patient "Opt-In" policy for immunization data deposited in the I-Care system with a patient "Opt-Out" policy for immunization data sent to the new Registry.
      • SB1234 has been introduced in the Illinois General Assembly. It changes the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/11) to allow for the disclosure for treatment purposes of patient pharmaceutical records without prior patient consent.
      • HB2917 was introduced in the Illinois General Assembly. It has proposed comprehensive changes to the Controlled Substances Act (720 ILCS 570/), including reporting requirements to monitor "prescriber shopping" and "pharmacy shopping" by addicts.

      In response to a question regarding how the local HIEs were handling sensitive protected health information, Mr. Chudzinski advised that the local HIEs are still working out that issue, and the local HIE solution in the near term may depend on the technical capabilities of the vendor solution that is acquired by the local HIE. Another member asked if the local HIEs have drafted patient consent forms. A member familiar with the operations of one of the local HIEs advised that it was waiting for the anticipated issuance by the Federal authorities of new regulations reflecting the privacy and security recommendations of the "TIGER Team".

      Mr. Chudzinski advised that nine of the ten Legal Task Force workgroups are now operational, and he expressed his thanks for the guidance and assistance that over 80 attorneys are currently providing as participants in the work groups.

      David Kim, Legal Intern at OHIT, gave a brief update on HIE development in other states:

      • California had decided to adopt an "opt-in" patient consent model. It would require notice and affirmative patient consent.(
      • In Texas, a bill (H.B. No. 300) was introduced that would raise the civil penalty for a pattern and practice of privacy violations from $250,000 to $5 million.
      • In Kansas, a bill (SB133) had been passed in the Kansas State Senate and is currently in the Kansas State House that would harmonize Kansas state medical privacy law with HIPAA (with some exceptions). The new bill would pre-empt previous Kansas state laws.

      Next, the group heard updates from the workgroups.

      Public Health and Abuse Reporting; Medical Research

      Maria Pekar advised of the following workgroup activities:
      • Converted the Behavioral Workgroup's "Analytical Worksheet" into an Excel Spreadsheet and adapted for own workgroup.
      • They have assigned different statutes to different members; will have two attorneys examining each of the statutes the workgroup has decided to analyze.
      • They have been examining how all the different statutes would affect the HIE.
      • They have 20 workgroup participants

      In the Executive Committee's discussion of HB 1331, the Immunization Data Registry Act, several concerns were noted, including:

      • Patient education and consent management component would create a new workflow burden for healthcare providers, arguably a disincentive for their participation in a voluntary reporting system
      • Public health justification for requiring mandatory reporting and patient participation appears strong; acceptance of a patient opt-out consent option for such data arguably raises the entitlement of patients to opt-out of other desired public health reporting
      • Acceptance of a patient consent retraction option creates additional workflow burden on providers (if they would have to track the opt-outs)
      • Recommended revisions to the bill
        • incorporate additional workflow aspects into existing workflows – provide patients opt-out notice through inclusion in the NPP, normal consent, and details of registry in NPP
        • Harmonize with HIPAA
        • Address concerns of secondary use of information such as provider liability
        • Reduce the paperwork
        • Make the registry exempt from FOIA requests

      Substance Abuse

      Renee Popovits advised of the following workgroup activities:
      • They have completed a rough draft of the Analytical Worksheet template
      • They are working on emergency consent
      • Looking at SB 1234 (amending Mental Health and Developmental Disabilities Confidentiality Act) – they have circulated the bill for comments
      • SB 1896 (amending Alcoholism and Other Drug Abuse and Dependency Act) is up for rewrite. Currently there is no provision for the HIE. Renee will meet with HFS. The group is waiting on recommendations from SAMSA and the TIGER team.
      • Desire not to see addiction treatment patient data be cut from the HIE

      Behavioral Health

      Wendy Rubas advised of the following workgroup activities:
      • They have finished editing the Analytical Worksheet and have divided up into smaller groups
      • There are two groups. One group will look at mental health codes and another group will look at licensure statutes.
      • They are close to completing their analysis.

      In the Executive Committee's discussion of SB 1234, amending the Mental Health and Developmental Disabilities Confidentiality Act, several concerns were noted, including:

      • The Legal Task Force is working on assembling a comprehensive set of recommendations for presentation to the General Assembly, and addressing only one of the areas of specially protected patient health information and/or only certain aspects of any one such area may impact the ability of the Task Force to propose further legislative action next year, suggesting that the Task Force should encourage the bill's sponsor to hold off on any new legislation until next year.
      • The bill does not address issues relating to medical research.

      Genetic Testing

      Mary Lucie advised of the following workgroup activities:
      • The group has populated a spreadsheet with the statutes from the OHIT "workgroup charter".
      • They have divided the group into two subgroups. One group has been examining the Genetic Counseling Act and the other group has been examining the Genetic Privacy Act.

      Liability issues arising from use of HIE, Immunity provision in PA96-1331, Litigation Testimonial Privileges, FOIA, Enforcement

      Pat Foltz advised of the following workgroup activities:
      • The group met on February 26th and finalized the assignment for 6 subgroups.
      • The group is looking at eight statutes.
      • The subgroups are to meet by March 11th.
      • The subgroups are to deliver a work product by April 11th.
      • The group will meet again on April 14th.
      • The Liability group has edited down the Analytical Worksheet.

      Disclosure of Clinical Laboratory Test Results; Prescription Drug Information; E-prescribing; Payment Claims

      Cliff Berman advised of the following workgroup activities:
      • The group met on February 10th .
      • They have a scheduled meeting for March 4th. At the March 4th meeting, they will be assigning tasks.

      Patient Consent Management/Forms

      Marilyn Thomas advised of the following workgroup activities:
      • The Patient Consent Group has met three times.
      • They are in the process of obtaining consent forms from other states and improving on the original HISPC consent form.
      • They feel that there needs to be more education on HIE.
      • They also feel that there needs to be a medical emergency legislation for the HIE.
      • They have another meeting scheduled for next week.
      • There has been some concern raised by the group concerning research.

      Interstate Issues

      Marilyn Lamar advised of the following workgroup activities:
      • The group has defined the issue that they are dealing with.
      • Noted that some states have across-the-board consent for emergency situations.
      • The group has some contacts with counterparts in Minnesota, Wisconsin, and Iowa through the HIE Upper Midwest Consortium initiative, and will additionally reach out to counterparts in neighboring Missouri, Indiana and Kentucky.
      • The group feels that a quick reference guide for sending medical records across state lines is needed.
      • The group is conducting a comparative analysis.

      The chairpersons recognized that there were several pieces of legislation in the current session of the General Assembly that could impact the work of the workgroups. In the group's discussion regarding the legislative agenda of the Task Force, it was noted that despite the emergence of new legislation during 2011, the Task Force should still focus on preparing a comprehensive HIE recommendation for the General Assembly for the 2012 legislative session. The Task Force should encourage the General Assembly not to amend or pass new laws concerning medical records until after the Task Force has finished its work and there is more guidance from the federal government. The launch of the ILHIE would be a good time to notify the General Assembly of the Task Force. It was noted that the future IL HIE Authority will need to track legislative developments and that it would be desirable for the Authority to have a designated legislative liaison on its staff.

      The next meeting will be scheduled about one month from the current meeting.

      The meeting was adjourned at 2:17 p.m.