Health Law and Policy Commons^™

Keep Your Friends Close And Your Medical Records Closer: Defining The Extent To Which A Constitutional Right To Informational Privacy Protects Medical Records, Lauren Newman

Journal of Law and Health

The following Article discusses the extent to which the constitutional right to informational privacy protects medical data from improper acquisition or dissemination by state agents. Part I provides background on Whalen v. Roe, the Supreme Court case that has been understood to establish the right to informational privacy. Part I also discusses the variations across the circuit courts as to what medical information is afforded protection by the right. Part II analyzes the well-established approaches adopted by the Second and Third Circuits as they present opposing interpretations of Whalen, one wholly protecting medical information and the other protecting …

Science And Privacy: Data Protection Laws And Their Impact On Research, Mike Hintze

Washington Journal of Law, Technology & Arts

While privacy laws differ in their scope, focus, and approach, they all involve restrictions on the collection, use, sharing, or retention of information about people. In general, privacy laws reflect a societal consensus that privacy violations can lead to a wide range of financial, reputational, dignitary, and other harms, and that excessive collection and harmful uses of personal information should therefore be constrained. These laws require organizations to comply with a number of obligations concerning personal information. In practice, these requirements can lead organizations to refrain from collecting certain data, only use data with the consent of the individual, or …

Animal Healthcare Robots: The Case For Privacy Regulation, Sulaf Al-Saif

Washington Journal of Law, Technology & Arts

Animal healthcare robots are a form of healthcare or wellness devices that possess the appearance of animals or pets and that collect data on the user. The appearance, use, and nature of data collected by these robots illustrate two types of devices for which privacy regulation falls short: Internet of Things (“IoT”) devices and healthcare devices. This paper surveys the animal healthcare robots currently in the market, details the special privacy concerns associated with such robots, examines the current state of potentially relevant privacy laws, and makes recommendations for privacy regulation in the future.

Data Re-Use And The Problem Of Group Identity, Leslie Francis, John G. Francis

Utah Law Faculty Scholarship

Reusing existing data sets of health information for public health or medical research has much to recommend it. Much data repurposing in medical or public health research or practice involves information that has been stripped of individual identifiers but some does not. In some cases, there may have been consent to the reuse but in other cases consent may be absent and people may be entirely unaware of how the data about them are being used. Data sets are also being combined and may contain information with very different sources, consent histories, and individual identifiers. Much of the ethical and …

Achieving The Goals Of The Value-Based Purchasing Program: Defining A Standard For External Data Use, Svetlana Makoviy

Student Award Winning Papers

In our society, artificial intelligence technology has permeated through every aspect of human life. By the end of 2019, more than 60 million Americans will use some kind of smartwatch, whether a Fitbit or an Apple Watch as a part of their daily routine. Further, over 58% of people currently use a healthcare-related mobile application, such as MyFitnessPal or Nike+ Running. Health and fitness application usage increased by over 330% in the last three years. Unsurprisingly, healthcare-related data is one of the fastest growing and financially valuable data pools in the country, if not worldwide. The volume of data generated …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

"You Have The Data"...The Writ Of Habeas Data And Other Data Protection Rights: Is The United States Falling Behind?, Sarah L. Lode

Indiana Law Journal

In Part I of this Note, I will discuss the writ of habeas data that has been developed primarily, but not exclusively, in Latin American countries. I will discuss the intricacies of the writ, how it evolved, and how it is applied today. Using Argentina as an example, I will discuss how the writ would be used by an Argentine citizen to protect her personal data. Part II summarizes the previously employed data protection scheme in the European Union, the Data Protection Directive (“the Directive”), and will also discuss the new EU data protection regulation, the General Data Protection Regulation …

The Federalism Challenges Of Protecting Medical Privacy In Workers' Compensation, Ani B. Satz

Faculty Articles

This Article is the first to address the challenges of federalism in protecting medical privacy in workers’ compensation after the promulgation of the HPR and to propose legal change. The Article argues that workers’ compensation programs must align with the federal privacy protections of the HPR and proposes actions for the U.S. Department of Health and Human Services (HHS) and states to remedy departures. Part I discusses the complex relationship between the HPR and workers’ compensation. This relationship is often misunderstood by legislatures and courts, compounding the challenges of federalism in this area. Specifically, Part I addresses the HPR’s § …

Identities In Critical Condition: The Urgent Need To Reevaluate The Investigation And Resolution Of Claims Of Medical Identity Theft, Stephanie Lindgren

Mitchell Hamline Law Review

No abstract provided.

Florida Law, Mobile Research Applications, And The Right To Privacy, Stacey A. Tovino

Scholarly Works

This Article investigates whether state law contains comprehensive privacy, security, and breach notification standards that could apply to independent scientists who conduct mobile app mediated health research. Focusing only on Florida law, this Article assesses potentially relevant and applicable sources of privacy, security, and breach notification standards for health data of the type obtained during mobile app mediated health research studies. This Article concludes that, with one exception, Florida law tends to fall into one of two categories: (1) the law contains at least one data privacy, security, or breach notification standard, but the standard is limited in application to …

A Timely Right To Privacy, Stacey A. Tovino

Scholarly Works

On December 28, 2017, the federal Department of Health and Human Services ("HHS") settled its fiftieth case involving potential violations of the privacy, security, and breach notification rules ("Rules") that implement the Health Insurance Portability and Accountability Act ("HIPAA") and the Health Information Technology for Economic and Clinical Health Act ("HITECH"). This Article catalogues and examines currently available enforcement actions involving the HIPAA and HITECH Rules, including the cases in which HHS has entered into a settlement agreement with a HIPAA covered entity or business associate, the cases in which HHS has imposed a civil money penalty on a HPAA …

Going Rogue: Mobile Research Applications And The Right To Privacy, Stacey A. Tovino

Scholarly Works

This Article investigates whether nonsectoral state laws may serve as a viable source of privacy and security standards for mobile health research participants and other health data subjects until new federal laws are created or enforced. In particular, this Article (1) catalogues and analyzes the nonsectoral data privacy, security, and breach notification statutes of all fifty states and the District of Columbia; (2) applies these statutes to mobile-app-mediated health research conducted by independent scientists, citizen scientists, and patient researchers; and (3) proposes substantive amendments to state law that could help protect the privacy and security of all health data subjects, …

Florida Law, Mobile Research Applications, And The Right To Privacy, Stacey A. Tovino

Faculty Articles

This Article investigates whether state law contains comprehensive privacy, security, and breach notification standards that could apply to independent scientists who conduct mobile app mediated health research. Focusing only on Florida law, this Article assesses potentially relevant and applicable sources of privacy, security, and breach notification standards for health data of the type obtained during mobile app mediated health research studies. This Article concludes that, with one exception, Florida law tends to fall into one of two categories: (1) the law contains at least one data privacy, security, or breach notification standard, but the standard is limited in application to …

Going Rogue: Mobile Research Applications And The Right To Privacy, Stacey A. Tovino

Faculty Articles

This Article investigates whether nonsectoral state laws may serve as a viable source of privacy and security standards for mobile health research participants and other health data subjects until new federal laws are created or enforced. In particular, this Article (1) catalogues and analyzes the nonsectoral data privacy, security, and breach notification statutes of all fifty states and the District of Columbia; (2) applies these statutes to mobile-app-mediated health research conducted by independent scientists, citizen scientists, and patient researchers; and (3) proposes substantive amendments to state law that could help protect the privacy and security of all health data subjects, …

A Timely Right To Privacy, Stacey A. Tovino

Faculty Articles

On December 28, 2017, the federal Department of Health and Human Services ("HHS") settled its fiftieth case involving potential violations of the privacy, security, and breach notification rules ("Rules") that implement the Health Insurance Portability and Accountability Act ("HIPAA") and the Health Information Technology for Economic and Clinical Health Act ("HITECH"). This Article catalogues and examines currently available enforcement actions involving the HIPAA and HITECH Rules, including the cases in which HHS has entered into a settlement agreement with a HIPAA covered entity or business associate, the cases in which HHS has imposed a civil money penalty on a HPAA …

Moneyball In The Era Of Biometrics: Who Has Ownership Rights Over The Biometric Data Of Professional Athletes?, Christopher Casher

Dalhousie Journal of Legal Studies

The 2003 release of Michael Lewis’s book, Moneyball, brought into the mainstream a new paradigm for professional sports management: the use of statistical analysis to identify currently undervalued athletes in an effort to gain a competitive advantage. This pressure to accurately value athletes has led, in part, to the widespread collection of professional athletes’ biometric data. While biometric data can create many benefits, its misuse can lead to detrimental outcomes for the athletes, including inequitable contract negotiations, loss of potential revenue from monetization of said data, and a loss of privacy. Thus, this paper seeks to determine who holds the …

Genetic Data Privacy Solutions In The Gdpr, Kristi Harbord

Texas A&M Law Review

The intersection of healthcare and technology is a rapidly growing area. One thriving field at this intersection involves obtaining, processing, and storing genetic data. While the benefits have been great, genetic information can reveal a great deal about individuals and their families. And the information that can be conveyed from genetic data appears limitless and is constantly growing and changing. Many entities have begun storing, processing, and sharing genetic data on a very large scale. This creates many privacy concerns that the current regulatory framework does not account for. The line between patient data and consumer data is blurred; many …

Shadow Health Records Meet New Data Privacy Laws, W. Nicholson Price Ii, Margot E. Kaminski, Timo Minssen, Kayte Spector-Bagdady

Articles

Large sets of health data can enable innovation and quality measurement but can also create technical challenges and privacy risks. When entities such as health plans and health care providers handle personal health information, they are often subject to data privacy regulation. But amid a flood of new forms of health data, some third parties have figured out ways to avoid some data privacy laws, developing what we call “shadow health records”—collections of health data outside the health system that provide detailed pictures of individual health—that allow both innovative research and commercial targeting despite data privacy rules. Now that space …

Privacy In The Age Of Medical Big Data, W. Nicholson Price Ii, I. Glenn Cohen

Articles

Big data has become the ubiquitous watch word of medical innovation. The rapid development of machine-learning techniques and artificial intelligence in particular has promised to revolutionize medical practice from the allocation of resources to the diagnosis of complex diseases. But with big data comes big risks and challenges, among them significant questions about patient privacy. Here, we outline the legal and ethical challenges big data brings to patient privacy. We discuss, among other topics, how best to conceive of health privacy; the importance of equity, consent, and patient governance in data collection; discrimination in data uses; and how to handle …

Medical Records And Privacy Rights: The Unintended Consequences Of Aggregated Data In Electronic Health Records, Andrea C. Maciejewski

University of Colorado Law Review

In an era of rapid-pace technological innovation and political focus on healthcare, the federal government is pushing for nationwide interoperability of electronic health records. While there are many benefits from such a program, the lack of federal or state privacy regulations for patients' personal data opens up the possibility of widespread dissemination of private and sensitive information. This inattention to privacy will cause major problems if exploited.

Currently, there are no federal or Colorado laws that protect against potential privacy violations and provide recourse for a patient if a medical professional decides to insert nonmedical information, such as information about …

Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence Of Abortion Exceptionalism In Garza V. Hargan, Kaytlin L. Roholt

Texas A&M Law Review

Since a majority of Supreme Court justices created the abortion right in 1973, a troubling pattern has emerged: The Supreme Court has come to ignore—and even nullify—longstanding precedent and legal doctrines in the name of preserving and expanding the abortion right. And with a Supreme Court majority that is blithe to manipulate any doctrine or principle—no matter how deeply rooted in U.S. legal tradition—in the name of expansive abortion rights, it should come as no surprise that lower courts are following suit. Most recently, the D.C. Circuit fired up the “ad hoc nullification machine,” but this time, its victim of …

Sb 104 - Carjacking, Fentanyl And "Upskirting", Katherine H. Krouse, Lauren R. Light

Georgia State University Law Review

The Act includes various amendments to Georgia’s criminal code. Three changes are most notable. First, the Act designates the offense of hijacking a motor vehicle as hijacking a motor vehicle in the first degree and creates the offense of hijacking a motor vehicle in the second degree. Second, the Act criminalizes the use of a device to film underneath or through an individual’s clothing. Lastly, the Act adds the drug Fentanyl and its various analogs to the list of controlled substances.

Privacy Of Information And Dna Testing Kits, Shanna Raye Mason

Catholic University Journal of Law and Technology

In modern times, consumers desire for more control over their own health and healthcare. With this growing interest of control, direct to consumer DNA testing kits have never been more popular. However, many consumers are unaware of the potential privacy concerns associated with such use. This comment examines the popularity and privacy risks that are likely unknown to the individual consumer. This comment also addresses the shortcomings of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as well as the Genetic Information Nondiscrimination Act of 2008 (GINA) in regard to protecting individual’s genetic information from misuse. This comment …

New Frontiers In Medical Privacy: Protecting The Biometric Data Of Patients In The Healthcare Industry, Jordan T. Shewmaker

Kentucky Law Journal

No abstract provided.

Remarks On Patient Privacy: Problems, Perspectives, And Opportunities, Stacey A. Tovino

Faculty Articles

No abstract provided.

Prescriptions At A Price: America's Opioid Crisis And The Increasing Toll On Drug Record Privacy, Reem Blaik

Vanderbilt Journal of Entertainment & Technology Law

How should the US Constitution govern patient privacy in the face of a public health emergency? Declaring the United States' opioid crisis as a public health emergency may put the already-compromised integrity of drug record privacy at higher risk by virtue of emerging administrative responses, existing Supreme Court precedent, and acquiescent state laws. The White House convened a summit on opioids where the then-US attorney general discussed law enforcement responses to the crisis. Although the Fourth Amendment protects against unreasonable searches and seizures, the Supreme Court's third-party doctrine generally grants state and federal actors access to records released to third …

Data Collection, Ehrs, And Poverty Determinations, Craig Konnoth

Publications

Collecting and deploying poverty-related data is an important starting point for leveraging data regarding social determinants of health in precision medicine. However, we must rethink how we collect and deploy such data. Current modes of collection yield imprecise data that is unsuited for research. Better data can be collected by cross-referencing other sources such as employers and public benefit programs, and by incentivizing and encouraging patients and providers to provide more accurate information. Data thus collected can be used to provide appropriate individual-level clinical and non-clinical care, and to systematically determine what share of social resources healthcare should consume.

Risk And Resilience In Health Data Infrastructure, W. Nicholson Price Ii

Articles

Today’s health system runs on data. However, for a system that generates and requires so much data, the health care system is surprisingly bad at maintaining, connecting, and using those data. In the easy cases of coordinated care and stationary patients, the system works—sometimes. But when care is fragmented, fragmented data often result. Fragmented data create risks both to individual patients and to the system. For patients, fragmentation creates risks in care based on incomplete or incorrect information, and may also lead to privacy risks from a patched together system. For the system, data fragmentation hinders efforts to improve efficiency …

Health Information Technology And Hipaa: Can We Satisfy Security And Privacy Standards In The Digital Age, Robert Malone

Oklahoma Journal of Law and Technology

No abstract provided.

Substance Use Disorder Treatment Confidentiality Boot Camp, Lucy C. Hodder, Stephanie Cameron, Marcy Doyle, Christina Muñiz, Jeanne Ryer Edd

Law Faculty Scholarship

[Excerpt]: "INTRODUCTION: The Health Law and Policy Programs at UNH School of Law, Institute for Health Policy and Practice, and the NH Citizens Health Initiative have contracted with several of the New Hampshire Building Capacity for Transformation Delivery System Reform Incentive Payment (DSRIP) Integrated Delivery Networks (IDN) to provide technical assistance to the IDNs as they develop confidentiality tools related to substance use disorder services projects.

A UNH Team assisted the IDNs by providing an educational summary of federal and state confidentiality requirements, focusing on 42 CFR Part 2, and hosting IDN interdisciplinary teams in three Substance Use Disorder (SUD) …