HIPPA

By: Carey Shenkman

In Florida it is now harder for surviving spouses to obtain health records of diseased loved ones, a victory for more uniform federal healthcare privacy. Indeed, this case is particularly significant given the historical context of HIPAA, which broke significant ground when it was passed. At the same time, the law, since passing, has raised some fears by critics about the expanded federal role in health insurance reform.

In Opis Management Resources v. SecretaryFlorida Agency for Health Care Administration case ruled that HIPAA (the Health Insurance Portability and Accountability Act of 1996) trumps a Florida statute § 400.145 governing access to health records. The bar set by HIPAA is higher than that in Florida. Under HIPAA, medical records for a diseased party may only be released to a designated “personal representative.” Under the superseded Florida law, several parties including spouses, attorneys, guardians, and other enumerated parties may make such requests.

This case was an important decision for intersecting issues of federalism and privacy. The rationale of the 11th Circuit Court of Appeals rested largely on the Supremacy Clause and express preemption language in HIPAA. HIPAA provided that the statute “shall supersede any contrary provision of State law,” providing for limited exceptions. The Court of Appeals rejected the State’s argument that the Florida law supplemented, rather than conflicted with, the federal law. The Court held that “The fatal flaw in the State Agency’s argument is that the plain language of § 400.145 does not empower or require an individual to act on behalf of a deceased resident.” Instead, the statute allows what the court called “sweeping disclosures” without requirements for authorization for the individual making the request. The Court also held that 400.145 is not limited in the same way as analogous federal law or regulation.

Particularly with the complex grid of state-level and federal regulations on privacy, this type of conflict is not an issue that will go away. We already see the potential for state-federal conflict in other privacy spheres, such as through issues of police investigations (such as through video or online surveillance) and commercial use of information. Scholar Michael Hail asserts that state courts are in a way ahead of the curve of their federal counterparts, calling them “more advanced in dealing with judicial policy.” Citing a Georgia Supreme Court decision Pavesich v. New England, Hail writes how the state was at the forefront of crafting a right to privacy. States can serve as laboratories for policy experimentation, but this inevitably leads to conflicts as Opis Management reveals.

In a sense, as journalist Michael Doyle points out, cases like these are beneficial for healthcare providers themselves who are caught in the middle of conflicting regulatory frameworks. Indeed, nursing home operators cheered the decision in Opis Management.

Sources:

http://www.mcclatchydc.com/2013/04/10/188184/florida-and-federal-court-clash.html#.UYPlvbXP168

http://cdn.intechopen.com/pdfs/13676/InTech-Federalism_privacy_rights_and_intergovernmental_management_of_surveillance_legal_and_policy_issues.pdf

http://www.ca11.uscourts.gov/opinions/ops/201212593.pdf

http://www.urban.org/UploadedPDF/NICHOLS.pdf