Reconciling the HIPAA Privacy Rule with State Laws Regulating Ex Parte Interviews of Plaintiffs’ Treating Physicians: A Guide to Performing HIPAA Preemption Analysis
52 Pages Posted: 5 Jan 2010
Date Written: 2006
In April 2003, the Privacy Rule, implementing the Health Insurance Portability and Accountability Act of 1996 (HIPAA), went into effect. Generally, the Privacy Rule regulates the use and disclosure of health information by health plans and health insurance companies.
Prior to the implementation of the Privacy Rule, however, most states had enacted various statutes and rules regulating the privacy of healthcare information. Therefore, once the Privacy Rule became effective, a major question was how the federal Rule would impact pre-existing state rules on healthcare information privacy.
HIPAA addressed this issue by including specific provisions whereby HIPAA would preempt state law. But despite HIPAA’s detailed preemption methodology, courts applying it to state privacy laws evinced a great deal of confusion as to how the HIPAA preemption analysis should be performed. In fact, courts performing the HIPAA preemption analysis reached widely diverging conclusions, even when they applied the HIPAA preemption rules to similar state laws. This confusion has been most noticeable in New York, where the state trial courts have been unable to agree on how HIPAA preemption rules should be applied to a state law right of defense counsel to conduct ex parte interviews of plaintiffs’ treating physicians in personal injury actions.
This paper will examine why application of HIPAA’s preemption methodology to state laws has resulted in confusion. It will point out errors that the author believes many courts have made in conducting HIPAA preemption analyses, and will set forth clear rules to follow that hopefully will simplify and clarify HIPAA preemption.
Originally published as Beverly Cohen, Reconciling the HIPAA Privacy Rule with State Laws Regulating Ex Parte Interviews of Plaintiffs' Treating Physicians: A Guide to Performing the HIPAA Preemption Analysis, 43 Hous. L. Rev. 1091 (2006).
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