72 Md. L. Rev. 682 (2012-2013)
Grand Bargains for Big Data: The Emerging Law of Health Information

handle is hein.journals/mllr72 and id is 700 raw text is: GRAND BARGAINS FOR BIG DATAL THE EMERGING LAW OF
HEALTH INFORMATION
FRANK PASQUALE*
ABSTRACT
Health information technology can save lives, cut costs, and expand ac-
cess to care. But its full promise will only be realized if policymakers broker a
grand bargain between providers, patients, and administrative agencies. In
exchange for subsidizing systems designed to protect intellectual property and
secure personally identifiable information, health regulators should have full
access to key data those systems collect.
Successful data-mining programs at the Centers for Medicare & Medi-
caid Services (CMS) provide one model. By requiring standardized collection
of billing data and hiring private contractors to analyze it, CMS pioneered in-
novative techniques for punishing firaud. Now it must move beyond deterring
illegal conduct and move toward data-driven promotion of best practices.
With this aim in mind, CMS is already subsidizing technology, but more
than money is needed to optimize the collection, analysis, and use of data. Pol-
icymakers need to navigate intellectual property and privacy rights skillfully.
They must condition current (and future) government support for providers
and insurers on better collection and dissemination of health information. If
they succeed, the law of health information might better incorporate public val-
ues than information law generally.
Copyright © 2013 by Frank Pasquale.
. Schering-Plough Professor in Health Care Regulation and Enforcement, Seton Hall
Law School; Affiliate Fellow, Yale Law School Information Society Project. I wish to thank
Seton Hall's Health & Pharmaceutical Law & Policy Program and Princeton's Center for
Information Technology Policy for giving me opportunities to conduct research on this
project. The participants at Harvard University's Law & Medicine Colloquium and Co-
lumbia University's Law, Medicine, and Public Health Colloquium provided very helpful
feedback, as did participants at the Health Law Professors' Conference at Loyola Law
School. I also greatly appreciate comments from Kathleen Boozang, Glenn Cohen, Carl
Coleman, Sachin Desai, Einer Elhauge, Abbe Gluck, Dovid Kanarfogel, Jordan Paradise,
Efthimi Parasidis, and Nic Terry. Research assistants Greg Mortenson and Alexander Ray-
tman also helped a great deal. Finally, thanks to Simon Stem for insights on the history of
information location services.

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