Comment: Comments noted that the definition of "state law" does not explicitly include common law and recommended that it be revised to do so or to clarify that the term includes evidentiary privileges recognized at state law. Guidance concerning the impact of state privileges was also requested.
Response: As requested, we clarify that the definition of "state law" includes common law by including the term "common law." In our view, this phrase encompasses evidentiary privileges recognized at state law (which may also, we note, be embodied in state statutes).
Comment: One comment criticized this definition as unwieldy, in that locating state laws pertaining to privacy is likely to be difficult. It was noted that Florida, for example, has more than 60 statutes that address health privacy.
Response: To the extent that state laws currently apply to covered entities, they have presumably determined what those laws require in order to comply with them. Thus, while determining which laws are "contrary" to the federal requirements will require additional work in terms of comparing state law with the federal requirements, entities should already have acquired the knowledge of state law needed for this task in the ordinary course of doing business.
Comment: The New York City Department of Health noted that in many cases, provisions of New York State law are inapplicable within New York City, because the state legislature has recognized that the local code is tailored to the particular needs of the City. It urged that the New York City Code be treated as state law, for preemption purposes.
Response: We agree that, to the extent a state treats local law as substituting for state law it could be considered to be "state law" for purposes of this definition. If, however, a local law is local in scope and effect, and a tier of state law exists over the same subject matter, we do not think that the local law could or should be treated as "state law" for preemption purposes. We do not have sufficient information to assess the situation raised by this comment with respect to this principle, and so express no opinion thereon.