Compelled Disclosures of Health Records: Updated Estimates

M. A. Rothstein and M. K. Talbott , “Compelled Disclosure of Health Information: Protecting against the Greatest Potential Threat to Privacy,” Journal of the American Medical Association 295, no. 24 (2006): 2882-2885.

M. A. Rothstein and M. K. Talbott , “Compelled Authorizations for Disclosure of Health Records: Magnitude and Implications,” American Journal of Bio-ethics 7, no. 3 (2007): 38-45.

Id., at 40.

For a discussion of GINA's legislative history, see J. L. Roberts , “Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act,” Vanderbilt Law Review 63, no. 2 (2010): 439-490.

Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233. 122 Stat. 881, codified as amended at 42 U.S.C. § 2000ff.

A provision of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. §§ 300gg-1(a) (1)(F), prohibits genetic discrimination in employer-sponsored group health plans. Therefore, the main significance of Title I of GINA was to extend non-discrimination to individual health insurance.

GINA § 202(b).

Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12201-12213.

See generally M. A. Rothstein , J. Roberts , and T. L. Guidotti , “Limiting Occupational Medical Evaluations under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act,” American Journal of Law & Medicine 41, no. 3 (2015): 523-567.

29 C.F.R. § 1635.8(b)(1)(i)(B).

Exec. Order No. 13335, 69 Fed. Reg. 24059 (2004).

Health Information Technology for Economic and Clinical Health (HITECH) Act, Title XIII of the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (2009).

Compare D. Manca , “Do Electronic Medical Records Improve Quality of Care? Yes,” Canadian Family Physician 61, no 10 (2015): 846-847 (finding improved improved efficiency) with C. Sinsky et al., “Allocation of Physician Time in Ambulatory Practice: A Time and Motion Study in 4 Specialties,” Annals of Internal Medicine, September 6, 2016, available at <http://annals.org/aim/article/2546704/allocation-physician-time-ambulatory-practice-time-motion-study-4-specialties> (finding a lack of improved efficiency).

B. Monegain , “More than 80 Percent of Docs Use EHRs,” Healthcare IT News, September 18, 2015, available at <http://www.healthcareitnews.com/news/more-80-percent-docs-use-ehrs> (last visited October 25, 2016).

Office of the National Coordinator for Health Information Technology, “Percent of Hospitals, by Type, that Possess Certified Health IT,” Health IT Quick-Stat #52 (May 2016), available at <dashboard.healthit.gov/quickstats/pages/certified-electronic-health-record-technology-in-hospitals.php> (last visited February 27, 2017).

Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act, Pub. L. No. 111-148, 124 Stat. 119-1025 (2010).

Kaufman, Hall & Associates, LLC, Hospital Merger and Acquisition Activity Up Sharply in 2015, available at <https://sfwebprodblob.blob.core.windows.net/sitefinity-libraries/docs/default-source/default-document-library/hospital-merger-and-acquisition-activity-up-sharply-in-2015.pdf?sfvrsn=0> (last visited February 27, 2017).

D. B. Muhlestein and N. J. Smith , “Physician Consolidation: Rapid Movement from Small to Large Group Practices, 2013-15,” Health Affairs 35, no. 9 (2016): 1638-1642.

For a further discussion, see M. A. Rothstein , “The Latest Challenge to Health Privacy: Health Care Consolidation,” Bioethics Forum, May 13, 2014, available at <http://www.thehastingscenter.org/Bioethicsforum/Post.aspx?id=6907&blogid=140> (last visited February 27, 2017).

U.S. Department of Labor, Bureau of Labor Statistics, Job Openings and Labor Turnover Survey News Release, March 17, 2016, at Table 13, available at <http://www.bls.gov/news.release/archives/jolts_03172016.htm> (last visited February 27, 2017).

29 U.S.C. §12112(d)(3). See generally Rothstein, Roberts, and Guidotti, supra note 9.

American Management Association, AMA 2004 Workplace Testing Survey: Medical Testing, available at <http://www.amanet.org/research/pdfs/medical_testing_04.pdf> (last visited February 27, 2017).

This latter category would include employees who have OSHA-mandated examinations because of their hazardous exposures.

Center for Policy and Research, America's Health Insurance Plans (2005): Individual Health Insurance: A Comprehensive Survey of Affordability, Access, and Benefits.

American Council of Life Insurers, 2015 Fact Book, at 66, Table 7.1, available at <https://www.acli.com/industry-facts/life-insurers-fact-book/> (last visited March 15, 2017).

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Insurance Information Institute, “Individual Long-Term Care Insurance, 2015(1),” available at <http://www.iii.org/fact-statistic/long-term-care-insurance> (last visited February 27, 2017).

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G. Iacurci , “Long-Term Care Insurance Market Sees Rapid Decline,” Investment News, July 21, 2016, available at <http://www.investmentnews.com/article/20160721/FREE/160729979/long-term-care-insurance-market-sees-rapid-decline> (last visited February 27, 2017).

Insurance Information Institute, “Individual Disability Insurance, New Issues Sale, 2015,” available at <http://www.iii.org/fact-statistic/disability> (last visited February 27, 2017).

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Milliman, Summary of Key Results from the 2014 and 2015 U.S. Group Disability Market Survey (2016), available at <http://us.milliman.com/uploadedFiles/insight/2016/2014-2015-US-Group-Disability-Market-Survey-Results.pdf> (last visited February 27, 2017).

National Association of Insurance Commissioners, Auto Insurance Database Report 2012/2013, available at <http://www.naic.org/prod_serv/AUTPB-12_2015.pdf> (last visited February 27, 2017).

Social Security Administration, “Disabled Worker Beneficiary Data,” available at <http://www.ssa.gov/oact/STATS/dibStat.html> (last visited February 27, 2017).

20 C.F.R. § 404.1508.

U.S. Chamber of Commerce, 2016 Analysis of Workers' Compensation Laws, Chart II — Coverage of Laws, at 15-24 (2016).

National Academy of Social Insurance, Workers' Compensation Benefits, Coverage and Costs (October 2016), at 1.

Id., at 46 (Table 18).

K. Antonello , 2015 State of the Line — Analysis of Workers Compensation Results, National Council on Compensation Insurance, available at <https://www.ncci.com/Articles/Documents/II_AIS-2015-SOTL-Article.pdf> (last visited December 11, 2016).

Congressional Budget Office, Veterans' Disability Compensation: Trends and Policy Options (2014), at 6, available at <http://www.cbo.gov/sites/default/files/cbofiles/attachments/45615-VADisability_1.pdf> (last visited February 27, 2017).

VA Form 21-526EZ, available at <http://explore.va.gov/file-claim> (last visited February 27, 2017).

National Center for State Courts, available at <http://www.ncsc.org/Sitecore/Content/Microsites/PopUp/Home/CSP/CSP_Civil> (last visited February 27, 2017).

Federal Judicial Center, Federal Judicial Caseload Statistics 2015 Tables, Table C-2 — U.S. District Courts — Civil Federal Judicial Caseload Statistics (March 31, 2015), U.S. District Courts — Civil Cases Filed, by Jurisdiction and Nature of Suit, available at <http://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2015-tables> (last visited February 27, 2017).

T. H. Cohen , “Federal Tort Trials and Verdicts, 2002-03,” Bureau of Justice Statistics Publication No. NCJ 208713, available at <http://www.bjs.gov/index.cfm?ty=pbdetail&iid=888> (last visited March 6, 2017).

See “Malpractice Claims at Record Low, Not Driving Health Costs: Consumer Group,” Insurance Journal, July 13, 2012, available at <http://www.insurancejournal.com/news/national/2012/07/13/255557.htm> (last visited February 27, 2017). See also M. A. Rothstein, “Health Care Reform and Medical Malpractice Claims,” Journal of Law, Medicine & Ethics 38, no. 4 (2010): 871-874 (discussing relationship between increase in health care coverage and decline in medical malpractice actions).

For a further discussion of contextual access criteria, see Rothstein and Talbott, supra note 2, at 43.