Significant legal- and market-based barriers continue to stand in the way of meaningful health information exchange between healthcare providers in states across the country.

To address these impediments, the National Governors Association has developed a roadmap to help governors, senior health policy officials, state lawmakers, state health IT officials and state legislative counselors evaluate and implement changes to increase the flow of clinical information between providers while protecting patient privacy.

Specifically, NGA’s roadmap is intended to highlight the policies and processes states should consider to increase the flow of clinical information between providers.

“Many states have privacy laws pertaining to health information that are more protective than HIPAA, restricting disclosure of specific categories of information deemed to be sensitive, such as mental health and communicable disease information, without explicit consent from the patient,” states the roadmap. “Further, hospital systems and provider groups are responsible for setting their own privacy policies, which vary and in some cases are more restrictive than federal or state laws based on narrow legal interpretation.”

NGA contends that these healthcare organizations often apply a more restrictive interpretation of the law to avoid legal risks associated with improperly sharing patient information. As a result, the wide array of hospital and other provider policies “creates a further layer of complexity on top of federal and state laws and can be an additional barrier to sharing patient information.”

Likewise, Lucia Savage, chief privacy officer in the Office of the National Coordinator for Health IT, which supported the development of the NGA roadmap, reiterated during a recent press briefing that HIPAA sets the nationwide minimum privacy and security protections for health information, and that states have “always had special roles that they find appropriate for their populations.”

The issue is not whether states have the right to protect their citizens, but “within that protection how do we make sure that data is available where it’s needed,” Savage said.

While legal requirements can create barriers to information sharing, according to Lauren Block, NGA’s health division program director, those barriers are not insurmountable.

Lauren Block

“The laws and policies that exist are intended as safeguards to protect privacy, but they are also intended to allow information to flow under specified conditions,” said Block. It’s just a matter of understanding when it’s possible and streamlining outreach and education necessary so people understand it.”

Savage charged that sometimes healthcare organizations use privacy as an excuse for not sharing information. “In fact, the privacy rules actually support exchange and it might be other drivers such as market drivers that are impeding that exchange,” she added.

The NGA roadmap identifies eight state strategies—four that address legal barriers and four targeting market barriers—designed to improve information flow between providers:

  • Fully align state privacy laws with HIPAA: Pass a law that supersedes all more restrictive state privacy laws to allow providers and hospitals to exchange information in accordance with HIPAA.
  • Partially align state privacy laws with HIPAA: Amend select statutes to allow certain types of information, such as information exchanged electronically, to be exchanged in accordance with HIPAA.
  • Create standardized consent forms: Create a standardized consent form that provides a “one-stop” approach to gaining patient permission for sharing information.
  • State guidance and education: Issue guidance and provide education to providers about how to comply with state and federal law, including clarifying legal intent and addressing common misconceptions.
  • Create meaningful economic interests that encourage exchange of health information: Create or adjust payments to incentivize exchange of health information, or penalize the lack of exchange.
  • Use legislative, regulatory and contracting authority to bolster exchange of health information: Pass laws or issue regulations that expressly prohibit information blocking or require information exchange.
  • Set the vision and hold people accountable: Set statewide vision for interoperable exchange of health information and use bully pulpit to elevate best practices and place pressure on those lagging behind.
  • Serve as convener: Bring key stakeholders to the table to work together toward interoperable exchange of health information.

According to NGA, state governors have powerful levers they can use to influence the legal and market dynamics that ultimately shape provider choices when it comes to sharing information. The roadmap was developed to activate governors and their senior state leaders to drive forward policies that support the seamless flow of information.

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Meghan Sifuentes Vanderstelt, policy director of the Michigan Department of Health and Human Services, said she encourages states to consider NGA’s roadmap as a resource for best practices and lessons learned.

Michigan has created a standardized consent form for sharing behavioral health information, enabling patients to designate which providers are allowed to share their information and which information should not be shared, as well as enabling patients to withdraw consent. The state is also working to create an electronic version of the consent form that providers can incorporate into their EHR interfaces so that it fits more easily into their workflow.

ONC’s Savage concluded that the NGA roadmap is “accessible, graphically oriented and in small pieces that people can easily digest” while integrating “process with substance.” In addition, she noted that as the U.S. healthcare system transitions from fee-for-service to value-based care health information exchange will be critical for providers “moving into MIPS and MACRA and beyond” who will need tools like the roadmap.

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