The Rhode Island affiliate of the American Civil Liberties Union is suing the state Department of Health, claiming rules adopted to establish a statewide health information exchange do not protect patient privacy.

The rules, according to Rhode Island ACLU, provide virtually no details as to how the HIE would work and protect the privacy and informed consent interests of patients. The Department of Health, according to the suit, intends to address these issues through internal policymaking that is not subject to public notice and comment requirements that rulemaking generally must follow.

The purpose of the enacted law to establish the HIE was 'to establish safeguards and confidentiality protections for the HIE in order to improve the quality, safety and value of health care, keep confidential health information secure and confidential, and use the HIE to progress toward meeting public health goals," the lawsuit states.

The suit specifically names David Gifford, director of the Department of Health, as the defendant. The State Office of the Attorney General will represent the department. The office was served with the suit on June 30 and has not yet had substantive discussions with the health department, according to a spokesperson. He adds: "The Department of Health enacted the regulations in good faith and remains open to input as it carries them out."

Rhode Island ACLU is asking the Rhode Island Superior Court to declare the promulgated rules incomplete and not compliant with HIE requirements; declare the adoption of "policies" rather than "rules" as null and unenforceable; and to order state promulgation of regulations "that completely fulfill its statutory obligation under HIE."

Frederic Marzilli, a private attorney voluntarily representing Rhode Island ACLU, says the state wants written policies in lieu of permanent regulations because statewide HIEs are a new, groundbreaking and confusing issue. But the ACLU's position is that the state should follow the normal regulatory process and regulations setting up the HIE should be as detailed as possible. Marzilli and Steve Brown, executive director of Rhode Island ACLU, have not yet been contacted by ACLU organizations in other states.

For a copy of the lawsuit, click here.

--Joseph Goedert

 

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