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By Nancy Ferris
A relatively new legal concept could prove to be the grease that keeps the wheels of the Nationwide Health Information Network rolling along friction-free.
A data use and reciprocal support agreement (DURSA) spells out the rights and responsibilities of the participants in a health information exchange. It covers areas such as responding to queries for health records, keeping data secure, handling a privacy breach and complying with technical specifications for interoperability.
A DURSA is being drafted for this year’s trial implementations of a nationwide network.
“The DURSA is really, at its core, a multiparty agreement,” said Steven Gravely, a partner at law firm Troutman Sanders, in a speech to the American Health Information Community in February. “Some folks use the word ‘treaty.’”
“It’s one of the tools that will allow us as a nation to get to health information exchange where individuals are comfortable with how it works,” said Dr. John Loonsk, director of the Office of Interoperability and Standards in the Office of the National Coordinator for Health Information Technology (ONC).
Data-use agreements have been popular for some time, Loonsk said, but DURSAs go beyond those agreements to specify the ways in which the organizations using a network must support one another.
For NHIN, which is a network of networks, the DURSA would establish a chain of trust by getting all participants to comply with NHIN standards and policies. It’s “your assurance that the other party that’s participating [in an exchange of data] is doing due diligence to see that those they connect to are ensuring the data [is] treated properly,” Loonsk said.
Although NHIN will need a governing body — perhaps a privatized version of the American Health Information Community — the DURSA would resolve in advance some of the operational and policy issues that NHIN users might encounter. It could also resolve some of the inconsistencies among state laws that govern the handling of health records.
For the trial implementations, an ONC workgroup is drafting the DURSA in two phases. The first will cover the NHIN test activities planned for this fall, which will only use data stripped of personal identification, “so it’s a little bit easier,” Loonsk said.
The second-phase DURSA will apply to production-level NHIN operations that use live data, scheduled for early 2009. But that is turning out to be a tall order. Issues abound, and many of them concern the hot-button area of patient privacy.
Another issue is indemnification, which means that NHIN participants promise not to sue one another for damages associated with their participation in the network. But the federal government and many state governments cannot legally sign such an agreement. In the absence of an indemnification pledge, some organizations might decide it’s too risky for them to participate in NHIN.
In addition, state laws differ regarding the release of health information in areas such as the need for patient consent or access to records about sexually transmitted diseases. How can a single nationwide agreement accommodate all those variations? It isn’t enough to say that the relevant state law applies because, in most cases, federal agencies cannot be subject to state laws.
The difficulty of creating a DURSA was clear when Gravely said in February: “I must say that in my 30-plus-year career in health care and 24-plus-year career in law in health care, this has been one of the more challenging things that I’ve done — but exhilarating at the same time.”
Whatever the challenges, ONC officials are convinced such an agreement will be necessary to enable NHIN to evolve and become a truly nationwide exchange. Most exchanges of electronic health records are facilitated by data-use agreements between two parties, such as a hospital and a medical practice. But if hundreds or even thousands of hospitals, doctor’s offices and other health care providers want to exchange patient records, such one-to-one agreements won’t be feasible.
“I think [a DURSA is] extremely important and really integral to our ability to move forward with what we all share as a vision for a national health information network,” Gravely said.
By Nancy Ferris
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