The Department has examined the effects of provisions in the final privacy regulation on the relationship between the federal government and the states, as required by Executive Order 13132 on "Federalism." Our conclusion is that the final rule does have federalism implications because the rule has substantial direct effects on states, on the relationship between the national government and states, and on the distribution of power and responsibilities among the various levels of government. The federalism implications of the rule, however, flow from and are consistent with the underlying statute. The statute allows us to preempt state or local rules that provide less stringent privacy protection requirements than federal law is consistent with this Executive Order. Overall, the final rule attempts to balance both the autonomy of the states with the necessity to create a federal benchmark to preserve the privacy of personally identifiable health information.
It is recognized that the states generally have laws that relate to the privacy of individually identifiable health information. The HIPAA statute dictates the relationship between state law and this final rule. Except for laws that are specifically exempted by the HIPAA statute, state laws continue to be enforceable, unless they are contrary to Part C of Title XI of the standards, requirements, or implementation specifications adopted or pursuant to subpart x. However, under section 264(c)(2), not all contrary provisions of state privacy laws are preempted; rather, the law provides that contrary provisions of state law relating to the privacy of individually identifiable health information that are also "more stringent" than the federal regulatory requirements or implementation specifications will continue to be enforceable.
Section 3(b) of Executive Order 13132 recognizes that national action limiting the policymaking discretion of states will be imposed ". . . only where there is constitutional and statutory authority for the action and the national activity is appropriate in light of the presence of a problem of national significance." Personal privacy issues are widely identified as a national concern by virtue of the scope of interstate health commerce. HIPAA's provisions reflect this position. HIPAA attempts to facilitate the electronic exchange of financial and administrative health plan transactions while recognizing challenges that local, national, and international information sharing raise to confidentiality and privacy of health information.
Section 3(d)(2) of the Executive Order 13132 requires the federal government defer to the states to establish standards where possible. HIPAA requires the Department to establish standards, and we have done so accordingly. This approach is a key component of the final Privacy Rule, and it adheres to Section 4(a) of Executive Order 13132, which expressly contemplates preemption when there is a conflict between exercising state and federal authority under federal statute. Section 262 of HIPAA enacted Section 1178 of the Social Security Act, developing a "general rule" that state laws or provisions that are contrary to the provisions or requirements of Part C of Title XI, or the standards or implementation specifications adopted, or established thereunder are preempted. Several exceptions to this rule exist, each of which is designed to maintain a high degree of state autonomy.
Moreover, Section 4(b) of the Executive Order authorizes preemption of state law in the federal rule making context when there is "the exercise of state authority is directly conflicts with the exercise of federal authority under federal statute***." Section 1178 (a)(2)(B) of HIPAA specifically preempts state laws related to the privacy of individually identifiable health information unless the state law is more stringent. Thus, we have interpreted state and local laws and regulations that would impose less stringent requirements for protection of individually identifiable health information as undermining the agency's goal of ensuring that all patients who receive medical services are assured a minimum level of personal privacy. Particularly where the absence of privacy protection undermines an individual's access to health care services, both the personal and public interest is served by establishing federal rules.
The final rule would establish national minimum standards with respect to the collection, maintenance, access, use, and disclosure of individually identifiable health information. The federal law will preempt state law only where state and federal laws are "contradictory" and the federal regulation is judged to establish "more stringent" privacy protections than state laws.
As required by the previous Executive Order (E.O.13132), states and local governments were given, through the notice of proposed rule making, an opportunity to participate in the proceedings to preempt state and local laws (Section 4(e)). The Secretary also provided a review of preemption issues upon requests from states. In addition, anticipating the promulgation of the Executive Order, appropriate officials and organizations were consulted before this proposed action is implemented (Section 3(a) of Executive Order 13132).
The same section also includes some qualitative discussion of costs that would occur beyond that time period. Most of the costs of the proposed rule, however, would occur in the years immediately after the publication of a final rule. Future costs beyond the ten year period will continue but will not be as great as the initial compliance costs.
Finally, we have considered the cost burden that this proposed rule would impose on state and local health care programs, such as Medicaid, county hospitals, and other state health benefits programs. As discussed in Section E of the Regulatory Impact Analysis of this document, we estimate state and local government costs will be in the order of $460 million in 2003 and $2.4 billion over ten years.
The agency concludes that the policy in this final document has been assessed in light of the principles, criteria, and requirements in Executive Order 13132; that this policy is not inconsistent with that Order; that this policy will not impose significant additional costs and burdens on the states; and that this policy will not affect the ability of the states to discharge traditional state governmental functions.
During our consultation with the states, representatives from various state agencies and offices expressed concern that the final regulation would preempt all state privacy laws. As explained in this section, the regulation would only preempt state laws where there is a direct conflict between state laws and the regulation, and where the regulation provides more stringent privacy protection than state law. We discussed this issue during our consultation with state representatives, who generally accepted our approach to the preemption issue. During the consultation, we requested further information from the states about whether they currently have laws requiring that providers have a "duty to warn" family members or third parties about a patient's condition other than in emergency circumstances. Since the consultation, we have not received additional comments or questions from the states.