Medicaid and Health Information: Current and Emerging Legal Issues

Article excerpt


In a multipayer, market-oriented health care system with shared Federal/State oversight responsibilities, technology advances that transform the system can raise complex legal questions. When the transformation involves HIT, the legal questions can be particularly complex, because of the central and historic role played by patient information in clinical quality and system accountability (Rosenblatt, Law, Rosenbaum, 2001; Furrow, et al., 2005).

Many of these legal questions arise within the body of Federal and State law that directly governs the collection, storage, use, and disclosure of patient information. But the legal questions extend beyond information law, reaching the body of laws that collectively authorize public and private health care financing.

This article focuses on several of the health information-related legal questions that arise under Federal Medicaid law. How these legal questions are resolved will determine in large part the extent to which the anticipated benefits of health information reach millions of Medicaid beneficiaries.


HIT advances are essential under Medicaid because of the program's size, structure, and importance. The largest of all Federal health care programs, Medicaid covered more than 55 million persons in 2005, financing nearly 20 percent of all personal health care (Kaiser Commission on Medicaid and the Uninsured, 2006). Medicaid's presence is especially pronounced among children (covering one in four younger children), as well as among children and adults with serious and chronic health conditions. Medicaid's coverage is relatively comprehensive in recognition of the financial and health status characteristics of its beneficiaries. Indeed, Medicaid is characterized by eligibility, enrollment, and coverage features that set it apart from other health care third party payers, whether commercial insurers, employee health benefit plans, or Medicare (Well, 2003; Rosenbaum, 2002; 2006). Federal eligibility categories span many groups who would be excluded from commercial plans; indeed, even Medicaid enrollees resembling the privately insured population (e.g., working age adults and children) experience significantly poorer health status. Medicaid enrollment occurs at the point of need, and is not structured to avert adverse selection.

Medicaid beneficiaries are overwhelmingly financially or medically impoverished, and are disproportionately members of racial or ethnic minority groups. (Rosenbaum, 2002) In light of who its beneficiaries are, Medicaid finances a broad array of services and benefits with limited cost sharing. Provider participation is more limited and concentrated, with smaller numbers of providers (frequently health care providers characterized as members of the health care safety net) accounting for a higher proportion of care. Moreover, their combined health and social risks mean that beneficiaries frequently receive services across a range of publicly financed health, educational, and social programs. Finally, as States begin to experiment with beneficiary enrollment into alternative benefit arrangements as a result of the coverage flexibility features of the 2005 Deficit Reduction Act (DRA), which give States broadened discretion to alter traditional Medicaid coverage requirements for certain classes of children and adults (Centers for Medicare & Medicaid Services, 2006), Medicaid's need to function seamlessly both with other health care payers and public programs will intensify.

Despite the importance of HIT to Medicaid's ability to advance patient safety and quality, Medicaid spending on this technology is low. In 2005, total Federal and State Medicaid financing stood at an estimated 8316.5 billion (Urban Institute and Kaiser Commission on Medicaid and the Uninsured, 2006); of this amount, expenditures related to HIT amounted to approximately 2.6 billion, less than 1 percent of total program spending that year (Friedman, 2006). …