HEALTHCARE PRIVACY LAW

HIPAA State Law Preemption

October 2002

By Christopher C. Gallagher*
Glasser LegalWorks conference "HIPAA Privacy Compliance"
October 24-25, 2002, Washington, D.C.
November 6-7, 2002, Chicago, Illinois

Download this document:
preemption.pdf (11 pages, 242 kb)

I. The Law

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) sought to improve the efficiency and effectiveness of our nation’s health care system by requiring the adoption of standards for the communication of health information. The “Administrative Simplification” the Act put in place, however, heightened Congressional concerns about the privacy and security of sensitive personal information.

...The same technological advances that make possible enormous administrative cost savings for the industry [and other social goals]...have also made it possible to breach the security and privacy of health information on a scale that was previously inconceivable.

Preamble to the Standards for Privacy of Individually Identifiable Health Information
65 Fed. Reg. 82,474 (2000)
(emphasis added)

Congress also acknowledged a need for patient trust in the process for sharing of critical health information with practitioners, providers and payors. Accordingly, Congress asked for standards for privacy and security, then gave itself three years in which to address these issues, adding that if it failed to act, the Secretary of HHS should enact these standards by rule. Congress did not meet its own deadline. Guided by a well known Code of Fair Information Practice Principles, HHS has acted. With its last iteration in August of 2002 , the Privacy Rule is now final. Beginning April 14, 2003, its Standards will be effective for most covered entities. The exhaustive process leading to this milestone is reflected in the Rule’s various Preambles. We believe HHS (in both the Clinton and Bush administrations) has done an excellent job with a difficult assignment.

Download entire article:
preemption.pdf (11 pages, 242 kb)

Covering:

I. The Law

Balances
Preemption
Exceptions to Preemption
The Requirements of Other Law
Preemption Analysis
Relates
Contrary
Contrary Methodology
More Stringent
More Problems
Compliance Strategy

II. Conclusion

HIPAA Preemption Analysis Chart

*Christopher C. Gallagher is admitted in New Hampshire.

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