Grand Bargains for Big Data: The Emerging Law of Health Information

92 Pages Posted: 29 Aug 2016  

Frank A. Pasquale III

University of Maryland Francis King Carey School of Law; Yale University - Yale Information Society Project

Date Written: 2013

Abstract

Health information technology can save lives, cut costs, and expand access to care. But its full promise will only be realized if policymakers broker a “grand bargain” between providers, patients, and administrative agencies. In exchange for subsidizing systems designed to protect intellectual property and secure personally identifiable information, health regulators should have full access to key data those systems collect.

Successful data-mining programs at the Centers for Medicare & Medicaid Services (“CMS”) provide one model. By requiring standardized collection of billing data and hiring private contractors to analyze it, CMS pioneered innovative techniques for punishing fraud. Now it must move beyond deterring illegal conduct and move toward data-driven promotion of best practices.

With this aim in mind, CMS is already subsidizing technology, but more than money is needed to optimize the collection, analysis, and use of data. Policymakers need to navigate intellectual property and privacy rights skillfully. They must condition current (and future) government support for providers and insurers on better collection and dissemination of health information. If they succeed, the law of health information might better incorporate public values than information law generally.

Keywords: health information, big data, health care, suppressed data, pharmaceuticals, medicare, insurance, electronic health records, hitech act, ppaca, affordable care act

Suggested Citation

Pasquale, Frank A., Grand Bargains for Big Data: The Emerging Law of Health Information (2013). 72 Maryland Law Review 682 (2013); U of Maryland Legal Studies Research Paper No. 2016-32. Available at SSRN: https://ssrn.com/abstract=2831712

Frank A. Pasquale III (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States
410-706-4820 (Phone)
410-706-0407 (Fax)

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

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