Comment: Several commenters objected to the fact that the NPRM did not clarify the scope of preemption of state laws under the Employee Retirement Income Security Act of 1974 (ERISA). These commenters asserted that the final rule must state that ERISA preempts all state laws (including those relating to the privacy of individually identifiable health information) so that multistate employers could continue to administer their group health plans using a single set of rules. In contrast, other commenters criticized the Department for its analysis of the current principles governing ERISA preemption of state law, pointing out that the Department has no authority to interpret ERISA.
Response: This Department has no authority to issue regulations under ERISA as requested by some of these commenters, so the rule below does not contain the statement requested. See the discussion of this point under "Preemption" above.
Comment: One commenter requested that the final rule clarify that section 264(c)(2) of HIPAA does not save state laws that would otherwise be preempted by the Federal Employees Health Benefits Program. The commenter noted that in the NPRM this statement was made with respect to Medicare and ERISA, but not the law governing the FEHBP.
Response: We agree with this comment. The preemption analysis set out above with respect to ERISA applies equally to the Federal Employees Health Benefit Program.
Comment: One commenter noted that the final rule should clarify the interplay between state law, the preemption standards in Subtitle A of Title I of HIPAA (Health Care Access, Portability and Renewability), and the preemption standards in the privacy requirements in Subtitle F of Title II of HIPAA (Administrative Simplification).
Response: The NPRM described only the preemption standards that apply with respect to the statutory provisions of HIPAA that were implemented by the proposed rule. We agree that the preemption standards in Subtitle A of Title I of HIPAA are different. Congress expressly provided that the preemption provisions of Title I apply only to Part 7, which addresses portability, access, and renewability requirements for Group Health Plans. To the extent state laws contain provisions regarding portability, access, or renewability, as well as privacy requirements, a covered entity will need to evaluate the privacy provisions under the Title II preemption provisions, as explained in the preemption provisions of the rules, and the other provisions under the Title I preemption requirements.