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Feb. 4, 2013
TOPEKA A plan to move the regulatory duties of the Kansas Health Information Exchange to the state health department will move forward following approval today by KHIE board members.
In July, the Kansas Department of Health and Environment proposed taking over the public-private KHIE as a way to save about $350,000 annually, and in September the KHIE board agreed to move forward with the proposal. The decision came at the same time that health information exchange was beginning in Kansas.
But the move would require changes in state law, meaning the 2013 Legislature, which has more than 50 new members — would need to be involved. For months, board members have wrangled with how to proceed with KDHE's proposal fearing it might be ensnarled in legislative debate — in part, possibly being confused with the hot-button issue of a state health insurance exchange, a separate initiative spawned by the Affordable Care Act.
During today's teleconference meeting, board member Jerry Slaughter said the needed revisions to state law should be introduced to the Legislature.
"We've discussed this many, many times as a board and voted to formalize this transition. I feel like we've addressed that and don't want to spend time to fight that battle again," said Slaughter, executive director of the Kansas Medical Society.
In 2011, the Legislature approved the so-called KHITE bill, which harmonized the state's patient privacy laws with the federal privacy law known as HIPAA. The legislation was meant to ease liability fears among Kansas doctors so they would join newly forming digital networks for exchanging patient information.
The proposed changes to KHITE would:
• Give authority to regulate the electronic exchange of patient information to KDHE and remove references to KHIE throughout the law.
• Remove all references to "exchange" in the law, using "share" instead, in order to minimize association with the controversial health insurance exchange.
• Add a so-called "break the glass" provision to the law allowing doctors to access any patient's information on the exchange in an emergency. Currently, it is legally ambiguous whether they can do so for patients who have opted out of the exchange (section 12-3).
• Add a provision to the law establishing an advisory council to KDHE, which would resemble the make-up of the current KHIE board (section 15).
• Add a provision to the law shielding the networks from being compelled to release patient information on the exchange, through subpoena or other legal action, in the event of a medical malpractice lawsuit (section 14-b).
During the meeting, network representatives told board members that the last provision was needed to head off frivolous lawsuits.
"It is a significant concern on the minds of physicians that the compilation of all this different information in one location is going to make it very attractive to the trial lawyers," said Laura McCrary, executive director of the Kansas Health Information Network.
If approved, KDHE would assume regulatory duties over electronic exchange of patient information effective July 1.
In other business today, the board also voted to retain legal counsel from Goodell, Stratton, Edmonds and Palmer in Topeka.
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