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Home > Privacy and Business > Medical Privacy > Select Laws and Regulations > HIPAA Privacy Regulations > Where the HIPAA Privacy Regulations Came From > HIPAA and the Privacy Torts

HIPAA and the Privacy Torts

In the preamble to the HIPAA regulations the section that describes their basis and purpose HHS relied on a study called "The State of Health Privacy: An Uneven Terrain" by the Institute for Health Care Research and Policy at Georgetown University. The regulation quoted the study finding that "state laws, with a few notable exceptions, do not extend comprehensive protections to people's medical records." This alleged absence of law provides a justification for the HIPAA regulations' scope and breadth.

But the 'Uneven Terrain' study says in the preamble:

    The survey is specifically and exclusively a survey of statutes, not laws. This distinction is important: we did not research or include regulations or common law, both of which ultimately must be understood in order to appreciate the full range of protections at the state level.
By excluding state tort law our nation's comprehensive privacy protection law the 'Uneven Terrain' study itself provides an uneven picture of existing privacy protection.

The HIPAA preamble acknowledges that "all fifty states today recognize in tort law a common law or statutory right to privacy," and it notes that tort law prevents some unauthorized disclosures of health information. It does not make a case that the tort law is insufficient or that the HIPAA regulations improve on the privacy protections of tort law.

In the absence of this kind of analysis, it is unclear that the HIPAA regulations actually improve privacy protection, though they certainly increase the amount of regulation and the role of government bureaucrats in health care.


The State of Health Privacy: An Uneven Terrain (A Comprehensive Survey of State Health Privacy Statutes), Health Privacy Project, Institute for Health Care Research and Policy, Georgetown University (August 8, 1999)

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[updated 02/22/01]

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