Bill-72: New health data transfer legislation proposed in Canada

The Government of Canada recently introduced Bill-72, the Connected Care for Canadians Act (Act), to promote the secure transfer of health information and prevent data blocking. The Act is designed to support the government’s initiative to establish an interoperable healthcare system and will permit the Ministry of Health to establish new regulations, set up a system to receive complaints, verify compliance and apply administrative monetary penalties for non-compliance.

Scope

Health information technology encompasses hardware, software, integrated technologies, intellectual property and upgrades for creating, maintaining, accessing, using or exchanging electronic health information or for supporting these functions. The Act applies to all vendors in the health information technology space (any that license, sell or supply as a service). The Act aims to facilitate the creation of a single pan-Canadian technical standard for data exchange – a critical feat if successful, given that Canadian health services are delivered across different provincial and territorial healthcare systems. 

The Act will only apply in provinces or territories that do not have at least substantially similar requirements to those established under this Act and Canada’s federal privacy framework. Currently, most of these jurisdictions do not have similar or more stringent provisions than what is being proposed, meaning we could see a much wider application of the Act than that seen with the Personal Information Protection and Electronic Documents Act (PIPEDA). 

Standards and requirements

To facilitate the protected and secure exchange of electronic health information across various systems, all vendors will be required to adopt common standards. In particular, the Act will regulate interoperability and prohibit data blocking.

• Interoperability refers to health information technology that allows users to “easily, completely and securely access and use and exchange all electronic health information with other health information technologies.”¹
• Data blocking is broadly defined as “a practice or act that prevents, discourages or interferes with access to or the use or exchange of electronic health information.”² Restricting the exchange of patient information or limiting the period of time a provider has access would both be examples of prohibited practices.  

Implications

• The regulatory regime imposed by the bill, while potentially very broad in scope, remains undefined. Since the Act is intended to implement the standards articulated in the Pan-Canadian Interoperability Roadmap, the roadmap may provide insight into upcoming interoperability standards that could form the basis of new regulations.³
• An interoperable healthcare system will allow various health data systems and entities to share data so that healthcare providers can access, use and exchange electronic health information. However, it is important to recognize that this access, use and exchange will still be subject to applicable federal, provincial or territorial laws on the protection of personal health information. 
• The integration of upcoming interoperability requirements will likely also require vendors and healthcare providers  to revisit their respective privacy and cybersecurity practices as part of such an undertaking.
• If passed, compliance with the Act may also require substantial amendments to the contracts governing arrangements between health information technology vendors and healthcare organizations. The Act, given its broad application, may also extend to service providers who have not previously been regulated under the existing health or privacy frameworks. 

The bill is currently awaiting its second reading in the House of Commons. We will continue to monitor any developments. There will be opportunities for industry stakeholders to provide input on the direction of the legislation, and if passed, on crafting the regulations. In the meantime, the Canadian Institute of Health Information (CIHI) and Canada Health Infoway are addressing Canada’s interoperability requirements. The CIHI is developing a Pan-Canadian Health Data Content Framework and is currently soliciting feedback on this data content framework.⁴