Does HIPAA Preemption Pose a Legal Barrier To Health Information Transparency and Interoperability?

Executive Summary T his paper summarizes the results of a review of nearly 500 judicial opinions decided as of fall 2006, involving access to protected health information (PHI) and privacy of medical information under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). This review was undertaken to determine whether HIPAA, which permits application of state privacy laws that are more stringent than the federal privacy standard, acts as a legal barrier to the creation of interoperable health information systems that permit transparency of health information. The availability of transparent and complete information regarding health system performance has been recognized as essential to improving the quality of care and reducing health care disparities. This exhaustive review of existing HIPAA court decisions provides no evidence that allowing more stringent state laws to be enforced impedes providers’ access to essential patient information. Nor does it create obstacles to the use of such information to improve quality, or to the aggregation and de-identification of such information for use in transparent reporting. Out of 113 HIPAA preemption cases that squarely focus on an alleged conflict between the HIPAA privacy rule and state law, only 13 cases involve situations where the court views state laws as more stringent than HIPAA, and none of the decided cases involve the denial of access to providers who seek personal health information for the purposes of treatment, quality improvement, or the production of transparent information. Indeed, HIPAA preemption litigation appears to focus on situations involving the disclosure of PHI as part of the legal process, rather than the use of this information to improve quality, reduce disparities, or create transparency. The most common type of case is one in which a health care provider is seeking to use HIPAA to shield Sara Rosenbaum is the Harold and Jane Hirsh Professor and Chair, Department of Health Policy, the George Washington University School of Public Health and Health Services. Phyllis C. Borzi is a research professor in the Department of Health Policy, GWU School of Public Health and Health Services. Taylor Burke is an assistant research professor in the Department of Health Policy, GWU School of Public Health and Health Services. Sonia W. Nath is a recent graduate of the dual degree program in law and public health at GWU and is currently a judicial clerk. This analysis was funded under a grant from the Robert Wood Johnson Foundation. VOL. 15, NO. 11 MARCH 19, 2007 REPORT