NH adopts first privacy law over HHS service referral

May 25—This story appeared in the May 25 edition of the New Hampshire Union Leader.

CONCORD — New Hampshire has adopted a first-in-the-nation privacy protection law that gives everyone receiving social services assistance the right to consent each time before personal information can be shared with other groups.

The bipartisan bill (HB 423) Gov. Chris Sununu signed sprang from action the Legislature took last summer, when it ended a closed-loop referral system contract that lawmakers thought didn't adequately protect residents.

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This bill gives the Department of Health and Human Services its marching orders for a new request for proposal it will issue this summer to reestablish a contract for this network.

HHS officials have wanted a closed-loop referral system, which enables health care professionals to send patient information to community-based organizations offering additional services, especially to those who need mental health care.

Anyone seeing a doctor is familiar with the consent form they're asked to sign before their medical information can be shared with others providing health care.

Erine Gray, the founder and CEO of Findhelp, the largest closed-loop referral system network in the U.S., said it's important to merge a robust program with one that respects individual privacy.

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"Those referrals used to be word-of-mouth, and you would go to your local church and get help. But now they're being digitized electronically, and essentially the federal government hasn't caught up with matching the legislation," Gray said during a public hearing on this bill.

Former state Rep. Neal Kurk, R-Weare, said the key with this law was to make sure a person could decide to give consent to each provider that wanted to offer them services.

"It allows the individual to choose if their information goes into the system or if it is only given to a specific provider," Kurk said. "Consent is required at each occasion when an individual engages with another provider."

Sen. Cindy Rosenwald, D-Nashua, the bill's prime sponsor, said this bill embraces the spirit of the privacy amendment to the state Constitution that Kurk authored and voters overwhelmingly approved in 2018.

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This law closes a loophole that gives the closed-loop referral provider 48 hours to start to inform any individuals whose personal information may have been breached, Rosenwald said.

She noted that about a decade ago, a Seacoast pathologist sent results to incorrect doctors, including some in Maine.

Sen. Bob Giuda, R-Warren, worked with Rosenwald and Rep. Jess Edwards, R-Auburn, on the bill.

"Elected officials did not take an oath to protect health care systems and vendors, but took an oath to protect the Constitution and the rights therein," Giuda said during a recent debate on the bill.

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Former HHS Commissioner John Stephen, a health care consultant, represented Findhelp.

"New Hampshire has developed a national model with this legislation. Many states are going to look to provide the same protections in their programs," Stephen said.

Unite Us, the company that first got the state's closed-loop referral system contract that was halted, ultimately supported this bill.

"In its current form, the legislation strikes a balance between regulating the future closed-loop referral system to protect privacy while simultaneously enabling information sharing that is necessary to connect people with care," said Carlos Uriarte, the company's vice president and regulatory counsel.

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Lawmakers had considered but decided not to include in this bill a legal right for citizens to take action in court against a provider that shared their information without their permission.

klandrigan@unionleader.com