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Step 2: Conduct Legal and Market Analyses

Before selecting strategies to increase exchange of health information, states should conduct a landscape analysis to fully understand primary challenges and opportunities related to legal and market issues. Landscape analyses can be conducted using data reviews, focus groups, surveys and informal interviews.

Legal Analysis

With regard to the legal privacy environment, analysis should include review of existing state privacy laws, primary privacy barriers for the provider community, perspectives of health care privacy advocates, patient preferences and the appetite for change among these key stakeholders.

See Appendix B for additional background on the legal landscape pertaining to information exchange.

Key Questions for Legal Analysis

State legal landscape:
  • Does the state have health care privacy laws that are more restrictive than HIPAA with regard to:
    • Mental health treatment information;
    • Substance abuse treatment information (beyond Part 2);
    • HIV/AIDS-related information;
    • Genetic information;
    • Treatment information for minors; or
    • Any other aspect of treatment, payment or operations?
  • Is there an appetite or desire for changes to state law?
Health care community needs:
  • Have providers identified state laws as a barrier to sharing information to coordinate patient care?
  • Have providers identified confusion about federal law (Part 2 and HIPAA) or state law as a barrier to sharing information to coordinate patient care?
  • Is there a desire among health care providers to simplify consent processes for treatment?
  • Are there any providers that would act as champions or early adopters for a policy?
Patient needs:
  • Are patients satisfied with the quality of care they are receiving, including the level of coordination between providers?
  • Are there consumer advocacy groups that oppose or support changing state privacy laws or policies?
Privacy community needs:
  • Does the privacy community view exchange of health information as in the interest of patients or as a threat to patient privacy?
  • Is there strong resistance to change among key stakeholders in the privacy community?

Market Analysis

From a market perspective, analysis should include review of existing payment structures across the state’s dominant public and private health insurers (including Medicaid and state employees) , appetite for change among key stakeholders, the IT vendor landscape, existing infrastructure for exchange, the level of provider participation in exchange, the type of information being exchanged, use of the information that is flowing and the level of provider and vendor information blocking that may be occurring.

See Appendix C for additional background on the market landscape pertaining to exchange of health information.

Key Questions for Market Analysis

Medicaid payment:
  • What are the state’s existing payment structures for Medicaid, state employees and other predominant health insurers in the state?
  • To what degree do payment systems incentivize exchange of health information either directly (for example, through explicit metrics that require exchange) or indirectly (for example, by developing new risk-bearing entities that necessitate care coordination and intensive communication between providers and provider entities)?
  • What are the current dynamics for shifting to VBP models?
  • Is there strong resistance to change among key stakeholders?
IT vendor landscape:
  • What is the current IT vendor landscape in the state?
  • How many EHR vendors and HIOs are in the state, and what is their market share?
  • Have vendors been resistant or cooperative in past efforts to increase exchange of health information?
Provider exchange of health information:
  • What is the current level of provider participation in exchange of health information?
  • What health information is currently being exchanged, and how often is the exchanged information used in the delivery of health care?
  • What is the existing infrastructure for exchange of health information between providers?
  • What is the primary reason providers are not participating in exchange of health information?
Information blocking:
  • Do key stakeholders report that information blocking is occurring among providers, health insurers or IT vendors?