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Second Thoughts in Congress on Preempting State Patient Privacy Laws

Second Thoughts in Congress on Preempting State Patient Privacy Laws

At least 1 key member of Congress seems to be backing away from the need for a federal patient information privacy standard, which is anathema to mental health groups. After hearings in a House Energy and Commerce subcommittee on March 16, a spokesman for Rep Nathan Deal (R-Ga), subcommittee chairman, said the congressman was having second thoughts about preempting state patient information privacy laws. Deal and Rep Nancy Johnson (RConn), chairman of the Ways and Means Subcommittee on Health, are the cosponsors of HR 4157, which would allow the Secretary of the Department of Health and Human Services (HHS) to establish a national privacy standard that would preempt state laws, many of which give considerably more protection to mental health information than the Health Insurance Portability and Accountability Act (HIPAA) does.

Todd Smith, deputy staff director to Deal, stated that in the aftermath of the hearings, the congressman is rethinking some portions of his bill. "His 2 main concerns are that patient privacy is protected and that Congress doesn't impede technology development," Smith said. The implication is that Deal may soften the bill's direction to the Secretary of HHS to come up with a national health information privacy standard that would preempt stronger state laws.

HIPAA's current privacy standard can be trumped by state laws. That standard allows physicians, hospitals, and other providers to pass along a patient's confidential medical information for purposes such as treatment, payment, and health care operations. That provision currently can be superseded by tougher state laws. In addition, HIPAA does make an exception for psychotherapy notes. These cannot be disclosed if they are kept out of a patient's general medical records, according to James Pyles, the Washington representative of the American Psychoanalytic Association, who testified at the hearings.

Pyles said his group and other psychiatric and mental health organizations that are members of the Mental Health Liaison Group oppose legislation that would allow the HHS Secretary to set a privacy standard that would override all state laws—especially a secretary in the Bush administration, which, according to Pyles, "has not been a privacyfriendly administration." He added, "It is almost a sure thing that the secretary would recommend preemption of state law."

The House bill directs the Secretary of HHS to study and report to Congress whether pertinent state laws and current federal standards should be conformed into a single set of national standards to preserve and protect the security and confidentiality of patient health information. It then amends the Social Security Act to "provide for establishment of uniform confidentiality and security standards with respect to individually identifiable patient health information."

The Senate passed a bill (S 1418) last November that is significantly different from HR 4157. It creates a federal/private sector group called American Health Information Collaborative to recommend to the HHS Secretary uniform national policies to support the widespread adoption of health information technology, including the protection of health information through privacy and security practices. However, the Mental Health Liaison Group believes this Senate bill also would lead to erosion of privacy protections.

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