The right to sue remains an important element of contract-based governance models
Among the gaps a formal governance system for the NHIN is intended to fill is the inability for organizations without a government contract or grant to sue the government; this lack of privity is cited by ONC leaders as a key reason that participation to date in the NHIN Exchange has been limited to government agencies and entities under contract or grant award by the government. While it may seem strange at first glance to hold out a formal legal principle underlying right of redress in this context, the right to sue is essential for entering into business relationships. This principle was effectively articulated a half century ago by Thomas Schelling is his Strategy of Conflict (1960):
Among the legal privileges of corporations, two that are mentioned are the right to sue and the “right” to be sued. Who wants to be sued! But the right to be sued is the power to make a promise: to borrow money, to enter a contract, to do business with someone who might be damaged. If suit does arise, the “right” seems a liability in retrospect; beforehand it was a prerequisite to doing business. In brief, the right to be sued is the power to accept a commitment. (p. 43)
As legal doctrine, privity explicitly limits the applicability of the terms of a contract to the parties to the contract. The Office of the National Coordinator clearly believes that entering into voluntary participation agreements with entities interested in using the NHIN Exchange is insufficient or inappropriate, and that more formal legal controls must be part of the arrangement. This is consistent with suggestions by Hardin (1991) and others who invoke Schelling that such legal rights are necessary in order for parties to an exchange like to make credible commitments to fulfill their obligations under the agreements they enter into. Since the Trial Implementations phase of the NHIN back in 2008, participating entities have executed a Data Use and Reciprocal Sharing Agreement (DURSA) that spells out numerous expectations and obligations for participants, and also disclaims liability for a variety of circumstances that might occur when exchanging information using the NHIN. Signing the DURSA is a prerequisite for connecting to the NHIN and exchanging data with other NHIN participants, but it does not address rights or obligations for entities in the process of applying to participate, and it is this gap that the forthcoming rulemaking on NHIN governance is intended to address.
Casual observers of NHIN activity to date may have been under the impression that voluntary commitments to participate were in fact part of the long-term vision for the NHIN, particularly given the public emphasis placed on the need to establish trust in the NHIN and health information exchange in general, including a “HIE Trust Framework” recommended by the NHIN workgroup of the Health IT Policy Committee that incorporates explicit oversight, enforcement, and accountability mechanisms. The current stipulation that additional legal contracting provisions are needed to begin to realize this long-term vision is not inconsistent with this framework, although it provides further evidence that the model of cooperation sought for the NHIN is one not of trust, but of mechanisms to compensate for the lack of trust (or, possibly, distrust) among the parties.
Hardin, R. (1991). Trusting persons, trusting institutions. In R.J. Zeckhauser (Ed.), Strategy and choice (pp. 185-209). Cambridge, MA: MIT Press.
Schelling, T.C. (1960). The strategy of conflict. Cambridge, MA: Harvard University Press.