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ILHIE Legal Task Force Meeting Minutes - May 11 2011 

ILHIE Legal Task Force Executive Committee Meeting

May 11, 2011

In-person Attendees:

Bernadette Broccolo
Will & Emery McDermott

Office of Health Information Technology

Mark Chudzinski

Attendance by Phone:

Judd DeLoss, DeLoss Health Law
Laurel Fleming, Northwestern Medical Faculty Foundation
Patricia King, Swedish Covenant Hospital
Marilyn Lamar, Liss & Lamar
Mary Lucie, Northwestern Memorial Hospital
Anne Murphy, Holland & Knight
Maria Pekar, Loyola University Health System
Renee Popovits, Popovits & Robinson
Edward Rickert, Krieg DeVault
Wendy Rubas, Central Dupage Hospital
Maia Thiagarajan, Ingalls Health System

Bernadette Broccolo, co-chair of the Executive Committee, opened the meeting at 1:00PM hosted by OHIT at the State of Illinois J.R. Thompson Center in Downtown Chicago, with a telephone conference call-in number. It was noted that notice of the meeting and the agenda were posted on the OHIT website 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.

On motion duly made and seconded, the minutes from the previous meeting (April 5, 2011) were approved.

  1. Mark Chudzinski, General Counsel of OHIT, provided a brief Illinois and Federal HIE update. The inaugural meeting of the IL HIE Authority was held on Wed., April 27.
  2. OHIT is proceeding with the finalization and issuance of an RFP for the acquisition of certain IT services which will constitute the state-level IL HIE.
  3. Planning and implementation of "local" HIEs throughout Illinois is accelerating. The Metropolitan Chicago HIE has announced the selection of a vendor for its HIE.
  4. Illinois State pending legislation
    1. HB1338, the Immunization Data Registry Act, has passed in the Illinois House and has had two readings in the Senate, making it eligible for passage in the coming weeks.
    2. SB1234 has passed in the Illinois Senate and has been placed on the calendar for a second reading in the Illinois House. It changes the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/11) to allow for the disclosure for treatment purposes of the records of patients in State of Illinois programs, being principally Medicaid. The bill has undergone significant amendment since its initial introduction.
  5. With the conclusion of the academic semester in most of the local law schools, OHIT is experiencing a turnover in its staff of Interns, and is accepting applications for voluntary internship positions for the summer.

Next, the group heard updates from the work groups:

General PHI

Patricia King, co-chair, gave the following update:
  • The workgroup members have completed their analysis of 5 relevant statutes (and case law) and have 4 remaining.
  • The workgroup will be discussing their findings in preparing a written report.

Ms. Broccolo welcomed the opportunity to receive and review completed worksheets from all work groups in order to suggest guidance for the work groups regarding next steps, including the drafting of white papers that will be prepared to support overall recommendations based on the work product of all the work groups.

Interstate Issues

Marilyn Lamar and Anne Murphy, co-chairs, gave the following update:
  • Ms. Lamar has continued to participate in the Upper Midwest HIE Consortium, which has been working on a Common Consent Form to be used in the States of MN, WI, SD, ND, IA and IL for inter-State exchange of PHI for treatment-payment-healthcare operations (TPO) purposes. With respect to these six States, the laws of MN are the most restrictive in that patient consent must be obtained for nearly all PHI disclosures, while the laws of IL require express patient consent in quite a few specific categories of PHI deemed "sensitive", resulting in a form of Common Consent with check boxes for multiple PHI categories, each of which must be initialed by the patient.
  • Illinois would benefit from having a "break the glass" emergency exception embodied within Illinois statute.
  • The IL Medical Patient Rights Act predates Federal HIPAA, and while IL and Federal law are generally similar conceptually for TPO, there are gaps and inconsistencies. Illinois would benefit from updating its laws to eliminate inconsistencies with Federal HIPAA, as recently proposed in the State of Kansas, and as the State of Wisconsin is reportedly considering.
  • Consideration should be given to accomplishing a "true up" of IL law with Federal law through a new statute that specifically addresses HIE in Illinois.
  • Consideration should be given to the scope of the IL HIE's anticipated uses of PHI, with resulting implications for the wording of PHI disclosure patient consent forms.

In the ensuing discussion it was noted that the full benefits of health information technology would not be obtained if electronic PHI was generated, stored, exchanged and examined only for TPO purposes. Healthcare data should be available to advance medical research and the reporting and analysis of treatment quality measures in order to lead to advances in clinical treatment. Ms. Broccolo noted that current laws and regulations contain a number of technical provisions pertaining to the characterization of "research", with implications for the collection and use of PHI for "research" purposes. Inconsistencies between Federal and State law in this area should also be addressed.

Substance Abuse

Renee Popovits, co-chair, gave the following update:
  • The Substance Abuse group has been working on edits on their legal analysis and the amendments they would propose to the model IL form of patient consent created in the HISPC-IL 2007 project. The group anticipates it will move from 80% to 100% completion in the beginning of June.
  • The group is anticipating further Federal guidance on 42 CFR in the next 3-6 months. Ms. Popovits has an upcoming meeting scheduled with Dr. Wes Clark of SAMHSA, during which she hopes to learn of SAMHSA's progress on the anticipated issuance of additional Federal guidance in the form of FAQs.
  • A key legal and policy barrier, under Federal and IL law, to the disclosure of substance abuse PHI is the restriction on "redisclosure".

In the ensuing discussion it was noted that consideration should be given in any new statute that specifically addresses HIE in Illinois to restrictions on PHI redisclosure, including instances of: records subpoenaed in child custody proceedings; peer review proceedings; quality and credentialing reviews. The scope of facilities not included in the Medical Studies Act should also be considered.

The group was informed that the OHIT Behavioral Health Workgroup, an advisory body to OHIT separate from the HIE Legal Task Force, has conducted a survey of behavioral health professionals in Illinois regarding patient consent management policies for an IL HIE, to which 280 responses were received. A majority of the survey's respondents indicated a preference for maintaining a patient "opt-in" model for disclosure through an HIE of behavioral health PHI. OHIT will make copies of the survey results available, but Mark Chudzinski cautioned that the preference for "opt-in" reflects current IL law and may in part be a reflection of the relatively limited information that has been provided to the survey participants regarding the benefits and risks of including behavioral health patients in a more comprehensive and coordinated patient treatment model, in which the exchange of PHI is facilitated by an HIE. It also predates the changes being proposed in SB1234 to the disclosure without patient consent of Medicare patient mental health PHI for treatment purposes.

Behavioral Health

Wendy Rubas and Laurel Flemming, co-chairs, gave the following update:
  • The subgroup that has reviewed IL licensing laws for mental health professionals has noted that there are slight variations between them regarding patient PHI confidentiality obligations that should be harmonized. In addition, inconsistencies between these statutes and Federal HIPAA and the IL Mental Health code should be addressed.
  • The subgroup that has reviewed the Mental Health Confidentiality Act expects to have a written report prepared in the first part of June. The group has already noted that the Act should be brought into alignment with Federal HIPAA, and further consideration should be given to the impact of the statute upon the conduct of medical research.

Genetic Testing

Mary Lucie, co-chair, gave the following update:
  • The group has consulted with the Public Health Workgroup with respect to their examination of IL laws that impact the conduct of medical research.
  • The group has already identified specific changes that can be proposed to IL law to bring it into alignment with Federal HIPAA. Consideration should also be given to a new statute that specifically addresses HIE in Illinois.

Public Health

Maria Pekar, co-chair, gave the following update:

  • The group has divided into subgroups that are looking at the relevant statutes, and expects to have a written work product by the end of June.
  • The group's work on the specific wording of proposed revisions to SB 1338 will result in the preparation of a template that could be useful to other workgroups that may be proposing IL statutory revisions.

Liability Group

Jud DeLoss, co-chair, gave the following update:
  • The group has divided into subgroup with each subgroup focusing on different issues and statutes. Three of the workgroups have completed their reports. No major obstacles to the development and implementation of HIE in IL have been noted to date.

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

Ed Rickert, co-chair, gave the following update:
  • The group has completed the analytical worksheets for two statutes; the group will be completing four more.
  • The group has noted some ambiguity in IL laws that permit disclosure for enumerated limited purposes, without expressly restricting disclosure for other uses. Consideration should be given to the scope of the IL HIE's anticipated uses of PHI, presumably in a new statute that specifically addresses HIE in Illinois.

In response to the chair's invitation, there were no comments offered from the general public.

The next meeting will be scheduled after the conclusion of the current session of the Illinois General Assembly, and will be longer to accommodate a more detailed review and discussion of the work product of the workgroups.

The meeting was adjourned at 2:15PM.