Top legal issues in healthcare include cybersecurity, HIPAA, telemedicine

Bloomberg BNA has issued its 2016 outlook on the top health law issues facing health lawyers, compliance officers and healthcare organizations. 

Several issues will have “significant regulatory, litigation and operational challenges in 2016,” said Peyton M. Sturges, Bloomberg BNA’s Managing Editor for Health Law News. Continuing provider realignment, stepped-up fraud and abuse enforcement, health IT adoption, frequent data breaches and telemedicine growth were issues identified by the editorial advisory board of Health Law Reporter.   

Hospital/physician realignment initiatives contributed to a near record number of mergers, acquisitions and other affiliations in the healthcare industry in 2015. As deals continue to be made to leverage economies of scale, state and federal antitrust and fraud enforcers are poised to ensure compliance with myriad — and in many cases hard to decipher — legal constraints. 

Telemedicine made the list for the first time this year as adoption face regulatory hurdles, mostly related to state licensure issues.

Health IT will demand extensive attention from practitioners, health plans and provider organizations as they wrestle with the gargantuan challenge of purchasing and implementing HIT systems that will meet both their, and regulators’, needs. The risk that data will be accessed by unauthorized individuals continues to grow and, with it, the liability exposure — estimated in the billions — associated with investigating data breaches, fixing them, and managing predictable claims and lawsuits.

Health IT encompasses several interrelated topics, such as interoperability, Big Data and nontraditional data sources, HIPAA compliance and cybersecurity.

The ‘‘overall issue in 2016 will be what the rules are for all of this new data, aside from legal and regulatory concerns,’’ Kirk Nahra, partner at Wiley Rein, said. Nearly every company that deals with healthcare information ‘‘will need to develop an appropriate data strategy that balances business and healthcare opportunities with the evolving legal and regulatory structure.”

Cybersecurity is more important than ever in the healthcare setting, according to Mark Kadzielski, partner at Pepper Hamilton. The number of medical records exposed through data breaches continues to increase so “proactive cybersecurity programs are essential for healthcare providers to avoid, or at least minimize, liability associated with data breaches.”

Proper staff training can help build the need culture of cybersecurity, he added.

“Mere compliance with the HIPAA Security Rule is not sufficient if current cyber risks are not being taken into account,” said Reece Hirsch, with Morgan, Lewis & Bockius.

The relationship between the safe design, implementation and use of health IT and patient safety will be important to healthcare providers, according to the report. Organizations also can expect to focus on electronic health information blocking because states have begun looking into whether such practices are being used as a tool by health systems to coerce physicians to join their networks. On the other hand, prohibitions on information blocking have “the potential to create conflict with patient authorizations, proprietary rights and breach notification obligations.”