We know that data analytics is being used to influence a wide range of things such as the pair of shoes one might want to buy or what news is “trending” on Facebook. Similar tools are being applied to employer-sponsored group health plans. According to a recent HealthcareITnews article, vendors such as Advanced Plan for Health (APH) are using predictive modeling functionality to support population health management. The ability to better anticipate and manage plan costs while shaping plan design to meet the needs of plan participants likely will be very appealing to plan sponsors, but employers should think through implementation carefully.

According to the article, these products (APH calls its product “Poindexter”) can make predictions about when certain health events are likely to occur (such as an ER visit), or forecast the nature of the services to be provided (such as the length of the participant’s hospital stay). We will leave to the data scientists to describe how this sausage is actually made, but here is how it is summarized in the article:

Currently, the Poindexter engine calculates care gaps and predicts the likelihood of hospital admissions, as well as readmissions, 6 to 12 months in advance for any given patient population — typically covered lives in a self-insured employer’s health plan. The tool also examines data from claims, pharmacy and clinical sources, benchmarking against real-world health data adjusted for comparable demographics, geography and industry of the employer.

Poindexter assigns risk scores to individuals within that population – identifying people whose health profile suggests elevated risk. With this information, case managers can improve outcomes and lower costs when they help patients avoid catastrophic events by improving their health through timely interventions.

One thing seems clear about this process – there’s a lot of data, a lot of very sensitive data, involved that is coming from a number of different sources. Certainly, data privacy and security compliance, yes this means HIPAA, must be taken into account by employers when considering whether and how to apply these analytical tools to their group health plans. Employer-sponsored wellness programs have raised similar issues as participants often must tender personal health information about themselves to take advantage of incentives under those programs.

Speaking of wellness programs, if analytics can predict and help employers better design their health plans, couldn’t the technology also be used to help prevent or put off more adverse and expensive health events. That is, in the course of “population health management,” would it be unreasonable to expect that a health plan that can reasonably anticipate or predict a significant health event would take some steps to try to prevent it from happening? Coupling analytics with traditional wellness programs, incentives perhaps could be more targeted to better steer participants toward healthier behaviors or to get care sooner and less expensively.

In the course of administering benefit plans with features like these, keeping protected health information anonymous may be easier said than done. Additionally, providing inducements can raise issues under HIPAA, the ACA, and the Equal Employment Opportunity Commission’s ADA and GINA regulations, which also have confidentiality protections. So, as technologies like analytics emerge to power employee benefit plans, particularly health plans, they need to be run through the array of law and regulations that apply to those plans.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.