AMCNO Provides Comments to the Ohio Health Information Partnership (OHIP) Patient Consent Policies for OHIP’s Health Information Exchange
Recently, the Ohio Health Information Partnership (OHIP) requested public comments on their Research and Recommendations for Patient Consent Policies for OHIP’s health information exchange. After detailed discussions and a thorough legal review of OHIP’s consent policy by various parties, a detailed comment letter was sent to OHIP on behalf of the AMCNO, Aultman Health Foundation, Care Alliance Health Center, Cleveland Clinic, EMH Health Care System, Sisters of Charity Health System/St. Vincent Charity Medical center and Mercy Medical Center, Southwest General Health Center, Summa Health System, and University Hospitals. The parties decided to write and submit a combined letter, as opposed to each organization writing and submitting separate letters, to streamline the comment process. We found that many of the organizations shared similar comments and viewpoints. We all recognized that these issues are complex, and that it is difficult to craft a solution that can be consistently applied on a statewide basis which provides a reasonable level of protection to both patients whose information is exchanged through the HIE, and to provider participants in the HIE. In addition, Ohio law regarding the consent issues raised in the Recommendations is not perfectly clear.

The OHIP Consent Model is based largely on an interpretation of Ohio law concerning patient consent. According to the Consent Model, patients must specifically consent to and authorize the transfer of their medical information from provider to provider for treatment purposes. Based upon this interpretation, the Consent Model proposes an “opt-in” framework for patient consent to include health information in Ohio’s HIE. Under the opt-in framework, each patient would need to specifically consent to allowing a provider to access the patient’s medical information through the HIE. The alternative to this framework would be an “opt-out” framework, in which patients could affirmatively choose to restrict the accessibility of their medical information through the HIE (i.e., to “opt-out”), but otherwise would not be required to consent to such access. Our response is based on concerns that the opt-in framework may raise public policy questions and create operational and administrative barriers for healthcare providers to participate in the HIE. In addition, Ohio law regarding patient consent for treatment purposes is silent and the interpretation of Ohio law supporting the opt-in framework is subject to meritorious and valid counter-arguments. Therefore, because of these issues, certain healthcare providers may decide not to participate in the HIE.

The letter to OHIP included an overview of Ohio case law and comments relative to public policy issues. The AMCNO and others from our region believe that the most appropriate approach to this issue is a change in Ohio law confirming that a patient’s consent is not required to allow a provider treating that patient to access the patient’s medical information (to the extent necessary to support the treatment). We believe that this is a commonsense approach to the issue that balances the patient’s interest in the confidentiality of medical information, the patient’s interest in having his or her health care providers conversant with his or her medical history, and the health care provider’s interest in reducing the cost of health care by reducing unnecessary administrative steps in caring for patients. The AMCNO would be supportive of pursuing such a change in Ohio law through legislation. Alternatively, the Consent Model and other OHIP forms, agreements and publications should indicate in relevant areas that because Ohio law is silent on the issue of what patient consent is needed for provider-to-provider transfers of information, each OHIP participant may make its own determination as to whether such consent is necessary. However, the Participant Agreement between OHIP and each provider should very clearly prohibit the provider from accessing medical information through the HIE for any purpose other than to support the treatment being provided to patients. 

OHIP received comments from around the state on this issue and they will be posting a response to comments no later than April 30th. The AMCNO will continue to provide our physicians with updates on this important issue. An article outlining all aspects of this issue will also be included in the May/June issue of the AMCNO Northern Ohio Physician magazine.