MEDICAL PRIVACY: Preemption Issue Key As Debate Heats Up
A panel of medical privacy experts yesterday agreed that the issue of "preemption" is going to be controversial as Congress attempts to pass legislation protecting medical records privacy. Under the 1996 Health Insurance Portability and Accountability Act (HIPAA), Congress has until August 1999 to enact legislation protecting the privacy of medical records. If lawmakers do not act by then, HIPAA mandates that the secretary of Health and Human Services create such standards. Speaking at an Alliance for Health Care Reform forum, IBM Director of Public Affairs Harriet Pearson said deciding whether federal medical privacy legislation should preempt state law will be a "key issue" when Congress takes up the matter. Janlori Goldman of the Institute for Health Care Research and Policy, another panelist at the forum, said as lawmakers draft the privacy legislation, preemption should be the last issue they consider, contending that Congress should see how other provisions in the legislation affect medical privacy before they tackle the controversial issue of preemption. Tim Westmoreland of the Georgetown Federal Legislative Clinic said that many of the medical privacy bills introduced in the 105th Congress preempt state law. However, he noted that some contain exceptions to preserve certain kinds of state and local laws. Those in favor of preempting state law -- generally the health insurance, managed care and pharmaceutical industries -- argue that uniform standards would make it easier and cheaper to transmit information across state lines. Others, however, argue that states with strong privacy laws should be able to preserve them and that different states have unique privacy concerns that they need to confront (Kennedy, California Healthline, 12/8).
A bill (S.2609) introduced by Sens. Robert Bennett (R-UT) and Connie Mack (R-FL) would preempt all state laws -- both weaker and stronger protections -- except those "regarding privileges of witnesses." Sens. Jim Jeffords' (R-VT) and Chris Dodds' (D-CT) measure (S.1921) builds on this, leaving in place state law related to witness privileges, abuse and neglect statistics, public and mental health disclosures, minors' rights to access health information and quality data. A bill (S.1368) cosponsored by Sens. Patrick Leahy (D-VT) and Edward Kennedy (D-MA) would preempt all state laws that are weaker than those proposed in their bill. H.R. 4250, the GOP's managed care reform bill, "[p]reempts all state laws related to use of protected health information for health care operations," but exempts laws regarding "confidentiality of medical records maintained by licensed medical professionals; the provision of health care to a minor or disclosure of information to a parent or guardian, condition-specific limitations on disclosure; the use or disclosure for disease or injury reporting, public health surveillance, investigation or intervention, vital statistics reporting, reporting of abuse and neglect information or communicable disease status or reporting of safety of a biological product, witness privileges, or where an individual is not competent to give consent." In a 50-page report to Congress, HHS Secretary Donna Shalala made recommendations for regulations that would preempt all state laws that provide weaker protections but would exempt laws regarding "reporting of vital events (such as birth and death, reporting of abuse or neglect, Public Health Service Act provisions regarding notification of exposure to infectious disease, any law authorizing reporting of protected health information for a worker's compensation program, and laws creating a privilege for records used in health professional peer-review activities." The National Association of Insurance Commissioners has drafted model legislation for states to adopt (Federal Legislative Clinic release, 12/8).