Appeal Involving Metadata in Recordkeeping Systems

A state-wide trade association representing New York skilled nursing and assisted living facilities engaged us to prepare an amicus curiae (friend of the court) brief in an appeal involving the applicability of the federal quality assurance privilege to metadata (information about information) in nursing home electronic recordkeeping systems. The Court of Appeals, New York’s highest court, had last addressed the scope of the nursing home quality assurance privilege in 2003, prior to the emergence of electronic health records. We analyzed the applicable factual and legal issues and developed arguments addressing the nature of audit log metadata, its use in the nursing home quality assurance process, the applicability of existing precedents and the public policy implications of compelled disclosure. These issues have state-wide significance for the entire nursing home industry, because public policy supports the use of electronic health records, and a rule that would subject metadata in these records to compelled disclosure would impede the adoption and use of electronic recordkeeping systems to improve health outcomes.