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Kirk Nahra Discusses Privacy Issues Related to HIPAA and the Common Rule

Modern Healthcare
January 20, 2016

Kirk J. Nahra, chair of Wiley Rein’s Privacy Practice and co-chair of the Health Care Practice, was quoted in a January 15 Modern Healthcare article, in response to U.S. Senator Tom Coburn’s Wall Street Journal op-ed, criticizing federal health privacy information laws, specifically Health Insurance Portability and Accountability Act (HIPAA). According to the article, Sen. Coburn said that regulations such as HIPAA make it more difficult for researchers to capture, analyze, and share clinical data to help fight the war on cancer.

However, Mr. Nahra said Sen. Coburn is confusing research governed under the Common Rule, which pre-dates HIPAA, and privacy protections under HIPAA itself. “The Common Rule was designed so American health research didn't follow Nazi Germany,” Mr. Nahra said, adding that it focuses on drugs or procedures that affect the body. “We could legitimately debate whether the Common Rule should have anything to do with data, because it’s not touching the body.”

Mr. Nahra pointed out that under HIPAA if a large health care organization, such as Sloan-Kettering, wanted to analyze data from all the patients in its database, it could use those findings internally to improve patient care, but it would not be allowed to publish the results. This doesn’t make sense, Mr Nahra said, so “there are some tweaks (to HIPAA) you can do that would not hurt privacy,” he added.

“If what [Coburn] is saying is the regulations are too complicated, I’m generally agreeing with that,” Mr. Nahra said. But Coburn “seems to be espousing a position here where he says we’re going to abandon individual privacy rights because the government can do research that helps people. That’s a bit of a surprising position,” given Coburn's conservative philosophy, he said. “But there are ways of doing that, that don't abandon individual privacy rights,” he concluded.

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