Imagine you are at the doctors office, and your physician just finished asking you 20 questions. You answer each question carefully, and he or she carefully enters your responses into a computer. You sit back and wonder: What it is this information being used for and where does it go?
When you give a physician information, it is just the start of a data traila trail that will continue all the way to the insurer, which will use it to generate claims for payment purposes. From the moment you offer up your information, all the way until the data arrives at the insurer, who owns each piece? Does it belong to the company where it is stored? Does it belong to the hospital or insurer covering the patient? Does it belong to the patient? Or does it belong to the state? All of these entities provide valid points to legitimize their claim, yet the question remains: In whose hands does the data belong?
An argument bringing this issue to the forefront is the case of Gobeille v Liberty Mutual Insurance Company in Vermont. Vermont runs an all-payer claims database (APCD) which requires insurers doing business in that state to submit claims data. The data includes third-party administrators of self-insured health plans, which turned out to be the key issue. Blue Cross Blue Shield of Massachusetts is the third party administrator for Liberty Mutuals, who is a multi-state employer operating a self-funded plan for its employees. When the state requested the self-insured data, Liberty Mutual instructed Blue Cross not to give in.
After multiple legal battles, the state found itself on the wrong end of the court, which ruled the Employee Retirement Income Security Act of 1974 preempted Vermonts law requiring data. It was ruled Vermonts law burdened and interfered with ERISAs core administrative function of reporting and therefore preempted Vermonts ability to require the data. Currently the case has been sent to the U.S. Supreme Court and will likely be reviewed sometime late fall.
The ruling itself could have implications other than just self-insured data in Vermont. Sixteen other states have APCDs or are currently developing them in an effort to use data to curb rising healthcare costs. Depending on how the court rules, many other states could find themselves unable to construct a more accurate health database due to data from self-insured plans being withheld. Without this demographic of insured patients, states could find themselves with an inaccurate or incomplete database, foiling plans to help healthcare costs down into the future.
But an even larger implication moving forward is this: Who actually owns the data? Is it for the state to have and use how they wish? Or does Liberty Mutual have a point saying they do not want to give up what is theirs? Healthcare is in a time where a majority of innovations come in the form of technology, with a greater importance being put on quality metrics and the data used to determine those metrics outcomes.
As groups settle in on how they measure and use data, it is very likely there will be even more fierce competition over the rights and ownership of it. Gobeille v Liberty Mutual Insurance Company might be just the tip of the iceberg for the onslaught of possible battles over who has rights to what data. It is imperative whichever way the court leans, to set a precedent for the future for who has the rights to the data because this surely will happen again as more people jump on the data ship.