The Privacy Rule is designed to minimize conflicts between Federal requirements and those of State law in the following ways:
– The Privacy Rule establishes a floor of Federal privacy protections and individual rights with respect to individually identifiable health information held by covered entities and their business associates. Covered entities may provide greater privacy rights to individuals and greater protections on such information. In addition, covered entities may comply with State laws that provide greater protections for individually identifiable health information and greater privacy rights for individuals.
– The Privacy Rule permits a covered entity to use or disclose protected health information if a State law requires the use or disclosure. See 45 C.F.R. 164.512(a).
– The Privacy Rule permits a covered entity to disclose protected health information to a public health authority who is authorized by law to collect such information for the purposes of preventing or controlling disease, injury, or disability, including, but not limited to, the reporting of disease, injury, vital events such as birth or death, and the conduct of public health surveillance, public health investigations, and public health interventions. (See 45 C.F.R. 164.512(b) for all of the public health disclosures permitted by the Privacy Rule.) Thus, State laws that provide for the reporting of disease or injury, child abuse, birth or death, or for the conduct of public health surveillance, investigation, or intervention, likely will not conflict with the Privacy Rule. In the unusual case where there is a conflict, the State law would stand. See 45 C.F.R. 160.203(c). Because the Administrative Simplification Rules themselves exempt such State laws from preemption, a request for the Department of Health and Human Services (HHS) to issue a preemption exception determination is unnecessary and inappropriate.
– The Privacy Rule permits a covered entity to disclose protected health information to a health oversight agency for oversight activities authorized by law, such as audits and licensure activities. See 45 C.F.R. 164.512(d). Thus, State laws that provide for certain health plan reporting for the purpose of management or financial audits, program monitoring and evaluation, or the licensure or certification of facilities or individuals, likely will not conflict with the Privacy Rule. In the unusual case where there is a conflict, the State law would stand. See 45 C.F.R. 160.203(d). Because the Administrative Simplification Rules themselves exempt such State laws from preemption, a request for the Department of Health and Human Services (HHS) to issue a preemption exception determination is unnecessary and inappropriate.
