National Health Information Privacy and New Federalism
James G. Hodge Jr.
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Notre Dame Journal of Law, Ethics & Public Policy, Vol. 14, No. 791, 2000
In a modern national health information infrastructure that encourages widespread collection, storage, and disclosure of identifiable health information, there exist new challenges to protecting health data privacy. Arguments for better health information privacy protections have motivated significant legal reform, particularly at the state level. Through the use of their virtually limitless police powers, states have enacted numerous types of privacy laws and policies concerning health data. These varied state privacy laws and regulations, however, have resulted in a patchwork system of protections with glaring exceptions. Consequently, many suggest the need for national federal health information privacy protections. Congress has introduced comprehensive health information privacy bills over the past several years and the federal Department of Health and Human Services is preparing to implement administrative regulations for the same purpose. Yet it is uncertain whether, and to what extent, the federal government should or can effectually protect health information privacy in an era of new federalism. The relationship between federalism and health information privacy ultimately concerns the ability of government in the United States to protect individual privacy. Principles of new federalism suggest not only that the existing powers of the federal government should be limited, but that prior federal responsibilities should increasingly be returned to the states. As these principles are explored against the need for privacy protections, the assumption that the federal government may appropriately supply these protections is challenged. The existing patchwork of state protections must not only be preserved, but may actually be preferred.
JEL Classification: K1Accepted Paper Series
Date posted: October 18, 2000
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