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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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