Bill would pave way for electronic exchange of patient data

Milwaukee, Wis. - Legislation to accommodate the electronic exchange of patient data between different health facilities and systems soon will be introduced in the Wisconsin Legislature, according to Kevin Hayden, secretary of the Wisconsin Department of Health and Family Services.

Hayden, speaking to the annual membership meeting of the Wisconsin Health Information Exchange, said backers have drafted legislation and hope to get it passed in the forthcoming but brief session of the Legislature, which is expected to conclude by the end of March.

Hayden, who spoke to the group by phone Tuesday due to the possibility of inclement weather, said the bill has been reviewed by Gov. Jim Doyle and has his full support.

The legislation would address key barriers to patient data exchange contained in two statutes, one dealing with the rights of the mentally ill and another pertaining to the release of health information.

“I'm happy to report that after 16 months of work with the eHealth Board… we now are on cusp of introducing legislation to deal with two key barriers to patient data exchange,” Hayden said.

Grounds for disclosure

The bill is the result of work with key stakeholder groups, including mental health advocates and private-sector partners to reduce restrictions on the electronic sharing of certain health information without written consent of patients, and to modernize privacy laws governing confidentiality in a way that is aligned with federal policies. In particular, the state mental health statute, 51.30, has resulted in delays to the implementation of the Madison area patient data exchange.

Hayden also said the bill would eliminate the requirement to document all disclosures except for those covered under the Health Insurance Portability and Accountability Act (HIPAA), such as cases involving child or elder abuse case.

“It is critical for health information exchange to be successful, that you have to move information between disparate health systems,” Hayden said. “A Milwaukee-based health system should be able to send information to an emergency room in Minocqua without the patient's consent. This begins to lay the foundation for health information exchange between competing systems.”

Faulty phraseology

According to DHFS, language in existing state statutes makes the exchange of healthcare information of mentally ill patients difficult because of the requirement for patients to provide informed written consent, which is not always easy to obtain.

Current Wisconsin statutes 51.30, which pertains to mental health, developmental disability, and AODA treatment records, creates barriers to health information exchange. This is because, except under limited circumstances, the patient’s written consent is required to disclose information to another healthcare provider.

Under current law, only certain elements of a patient's treatment records may be released without informed written consent. These elements include name, date of service, diagnosis, and medications.

In addition, these details may only be released to healthcare providers in a “related health care entity," which generally means a clinically integrated care setting or a given health insurance plan.

Current law would not allow a physician from Dean Clinic in Madison to share a patient’s health information with a University of Wisconsin physician without the written informed consent of the patient.

The requirement under statute 51.30 is more stringent than state laws governing other types of healthcare information, which permit disclosure of healthcare information for treatment purposes without patient consent, and they are more stringent than federal HIPAA privacy law guidelines.

The bill, AB 793, proposes to amend statute 51.30 to allow the exchange of “crucial” information that physicians have identified a need for, and it would allow for the exchange of information with any healthcare provider with a need to know.

It would do so by adding diagnostic test results and symptoms to the list of elements that may be exchanged without patient written consent and by removing a requirement that data only be exchanged within a “related healthcare entity.”

Written consent still would be needed to disclose information on an entire consultation note or discharge summary and other elements not contained in the bill.

Amending statute 146

The barriers that need to be removed under Statute 146 include a prohibition of re-disclosure of information received by one healthcare entity to another entity. In addition, state law requires documentation of all disclosure of health information, whereas the HIPAA law requires documentation of some but not all disclosures.

The bill would allow re-disclosure of health information in a way that benefits electronic patient data exchange while retaining limitations on re-disclosure to protect confidentiality. It also eliminates the requirement to document all disclosure and aligns state law with HIPAA document disclosure requirements for child or elder abuse cases or public health reporting and disclosures to law enforcement and coroners.

Existing law also makes it hard to share health information with a patient’s family member, friend, or other person involved in the patient's care. Doing so requires the written consent of the patients when the patient may not be available or capable of providing written consent.

The new law would allow healthcare providers to disclose health information to a patient’s family, friend, or someone else the patient identifies. This would be the case as long as the patient provides informal permission. If the patient is not available or physically or cognitively unable to grant informal permission, the dissemination of information would be up to the caregiver’s professional judgment.

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