Application of legal and regulatory rules and policies to benchmarking systems

Although there are few federal or state laws that address benchmarking systems, there are legal issues of which those who develop or use benchmarking system should be aware. Benchmarks may be used as standards of care in tort or professional discipline actions. Use of benchmark data to set fees or exclude providers may raise antitrust concerns. Payers may use benchmark data to set coverage policies or payment rates. Which data are included in benchmarking systems and who has access to those data raise issues of confidentiality. Lastly, benchmarking system developers may want to protect their intellectual property rights and may need to consider medical device laws if they claim that the systems may be used in patient management.