Annals of Health Law the Health Policy and Law Review of Loyola University Chicago School of Law
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Volume 27 | Issue 1 Fall 2017 ANNALS OF HEALTH LAW THE HEALTH POLICY AND LAW REVIEW OF LOYOLA UNIVERSITY CHICAGO SCHOOL OF LAW BEAZLEY INSTITUTE FOR HEALTH LAW AND POLICY EDITOR-IN-CHIEF Adrienne Testa PUBLICATIONS EDITOR TECHNICAL PRODUCTION EDITOR Christine Bulgozdi Jordan Donnelly ADVANCE DIRECTIVE EDITOR ADVANCE DIRECTIVE EDITOR Sarah Gregory Collin Rosenbaum SYMPOSIUM EDITOR Lauren Batterham ANNALS SENIOR EDITORS Lauren Park Kevin Pasciak Scott Stiefel Alexander Thompson MEMBERS Emily Boyd Emma Garl Smith Natalie Novak Adrian Chan John Gitta Kara Simon Chloe Cunningham Mary Hannosh Derek Springer Fabiola De Armas Victoire Iradukunda Jessica Sweeb Abigail Elmer Brianna Jenkins Justin Taylor Lianne Foley Sarah Johnson Allyson Thompson Timothy Joseph Gaffud John Meyer Kaleigh Ward FACULTY ADVISORS Lawrence E. Singer, J.D., M.H.S.A. Director and Professor of Law, Beazley Institute for Health Law and Policy Loyola University Chicago School of Law John D. Blum, J.D., M.H.S. John J. Waldron Research Professor of Health Law Loyola University Chicago School of Law BUSINESS MANAGER Kristin Finn VOLUME 27, ISSUE 1 FALL 2017 Annals of Health Law INFORMATION FOR CONTRIBUTORS About Annals of Health Law: The Beazley Institute for Health Law and Policy publishes the Annals, a bi-annual journal, which contains articles of particular relevance to health care practitioners, policy makers and scholars. The Annals has been published since 1992 and is managed and edited entirely by students. The Annals’ staff members are selected at the end of their second semester of study. All members are accepted on the basis of their academic standing and their performance in a school-wide competition. The incoming Editorial Board Members choose the new members based on their literary and scholastic achievements as well as their management and leadership skills. The Annals currently publishes two issues per year. The Winter Issue covers general health law topics, while a portion of the Summer Issue is devoted to the Annual Health Law and Policy Symposium topic that varies each year. Submission Address: Completed articles should be submitted to: Editor-in-Chief, Annals of Health Law, Beazley Institute for Health Law and Policy, Loyola University Chicago School of Law, 25 East Pearson Street, Chicago, IL 60611. Alternatively, articles can be submitted via email at [email protected]. Format: The Annals of Health Law invites submissions of unsolicited manuscripts. Citations in manuscripts should conform to the most recent version of The Bluebook: A Uniform System of Citation, published by the Harvard Law Review Association. (All citations should be contained in footnotes.) The article can now be submitted via email as an attachment or can be submitted through regular mail, containing both a printed copy and MS Word file of the article on a CD-Rom. Please include your name, title, and degrees at the top of the first page and your current resume. We also request an abstract of 250 words or less. Copyright: A statement transferring copyright to Loyola will be required for articles that are accepted for publication. We will supply the necessary forms for transfer. Reprints: Copyright © 2018 by Loyola University Chicago School of Law, Beazley Institute for Health Law and Policy. Please fax your reprint request to: Business Manager, Annals of Health Law, Beazley Institute for Health Law and Policy, 312-915-6212. Disclaimer: The ideas expressed herein are those of the authors and do not necessarily represent the view of the Beazley Institute for Health Law and Policy, the staff of the Annals of Health Law, or Loyola University Chicago School of Law. Advance Directive The Annals of Health Law editorial staff is proud to present the student authored journal, Advance Directive. An advance directive is a legal document indicating an individual’s preferences for future health care. Similarly, the mission of Advance Directive is to create a forum to address current issues as well as future directions within the complex field of health law. As the student component of Annals, Advance Directive’s contributors present a wide range of perspectives on emerging issues in health law. For further information regarding Annals and Advance Directive, please visit our website: http://www.luc.edu/law/centers/healthlaw/annals/index.html ANNALS OF HEALTH LAW ADVANCE DIRECTIVE THE STUDENT HEALTH POLICY AND LAW REVIEW OF LOYOLA UNIVERSITY CHICAGO SCHOOL OF LAW Beazley Institute for Health Law and Policy VOLUME 27, STUDENT ISSUE 1 FALL EDITION 2017 CONTENTS Editor’s Note .................................................................................................................... i ARTICLES Taxing Covered Entities Who Opt to Not Encrypt ePHI in the Wake of National Federation of Independent Business v. Sebelius Derek Springer .................................................................................................................... 1 Owning Your Privacy: Why Illinois Should Extend Private Causes of Action to Improper Disclosures of Other Stigmatizing Health Information Kaleigh Ward .................................................................................................................... 12 Is This Really Over? 45 C.F.R. § 164.506(c)(4) and Determining When the Physician-Patient Relationship Ends Allyson N. Thompson ........................................................................................................ 23 Consumers Left up a Genetic Data Creek Without a Paddle John Meyer ....................................................................................................................... 37 Cloud-Based EHR: Demonstrating Meaningful Use and Interoperability for 2018 Timothy Gaffud ................................................................................................................. 50 Targeted Advertising in the Healthcare Industry: Predicted Privacy Concerns Lianne Foley ..................................................................................................................... 62 The Importance of the Garden-Variety Exception to Mental Health Privilege Waivers in Protecting Patient Privacy Emma Garl Smith .............................................................................................................. 72 Undocumented Immigrants and Incomplete Health Information: A Costly Blind Spot for Health Care Providers and Their Patients Victoire Iradukunda .......................................................................................................... 81 Privacy in Public Health Crisis: A Question of Culture Natalie Novak ................................................................................................................... 91 ANNALS OF HEALTH LAW Advance Directive Editor’s Note The Annals of Health Law is proud to present the Nineteenth issue of our online, student-written publication, Advance Directive. As has become tradition, this Issue features articles that correspond with our Eleventh Annual Symposium on Health Law & Policy presented by the Beazley Institute for Health Law and Policy and Annals of Health Law: ‘Privacy, Big Data and the Demands of Providing Quality Patient Care.’ Issues of privacy arise when information is both sensitive or private enough for interested parties to demand privacy and yet valuable or useful enough for others to want or need access. Health information is a classic example. Many categories of health information are considered private— disclosure of health information may open a patient up to anything from public embarrassment to insurance, employment, and other discriminations turning on his or her health status. At the same time health information has incredible value, beyond the patient and his or her doctor. The large volume of information gathered by hospitals and other health care facilities has attracted the attention of Big Data, particularly as electronic medical record systems and network connectivity make the consolidation, transmission, and analysis of this information a viable goal. However, the law has taken steps to protect patient privacy in some, but not all, circumstances. In the United States especially, health technologies and patient privacy are regulated by a dizzying array of statutes, regulations, and administrative agencies at both the federal and state level. Our authors therefore examine a variety of issues related to the rise of technology and “big data,” as well as efforts to increase access, efficiency, and quality and the challenges of security and privacy of patient information. The Issue begins by looking at the protection of health information at the federal and state level, and examining the way existing regulatory mechanisms could be extended to encourage better safeguards to patient privacy. First, we examine whether the Supreme Court’s holding in National Federation of Independent Business v. Sebelius creates grounds to tax entities who fail to encrypt sensitive health information. Second, we analyze Illinois’ existing privacy protections for stigmatizing health information, and how these might be extended to allow individuals a private cause of action if their information is disclosed. Finally, our authors dig into the provisions of the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule to argue for interpretation that is both flexible with regard to information sharing, even as patient information is protected. The Issue then turns to the matter of emerging technologies in the healthcare space. The