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

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. Copyright © 2013 by Frank Pasquale. * Schering-Plough Professor in Health Care Regulation and Enforcement, Seton Hall Law School; Affiliate Fellow, Yale Law School Information Society Project. I wish to thank Seton Hall’s Health & Pharmaceutical Law & Policy Program and Princeton’s Center for Information Technology Policy for giving me opportunities to conduct research on this project. The participants at Harvard University’s Law & Medicine Colloquium and Columbia University’s Law, Medicine, and Public Health Colloquium provided very helpful feedback, as did participants at the Health Law Professors’ Conference at Loyola Law School. I also greatly appreciate comments from Kathleen Boozang, Glenn Cohen, Carl Coleman, Sachin Desai, Einer Elhauge, Abbe Gluck, Dovid Kanarfogel, Jordan Paradise, Efthimi Parasidis, and Nic Terry. Research assistants Greg Mortenson and Alexander Raytman also helped a great deal. Finally, thanks to Simon Stern for insights on the history of information location services. 2013] GRAND BARGAINS FOR BIG DATA 683