Medical privacy Hawaii's medical privacy law, headed for repeal by the state Legislature, "is a pussycat" compared with the federal privacy act, says Richard S. Miller, University of Hawaii professor of law emeritus.
law repeal criticized
A law professor likens it to
jumping from the frying
pan into the fireBy Helen Altonn
Star-Bulletin"This is really ironic because the federal bill is considerably more demanding," says Miller, consultant to the Hawaii Coalition for Health.
Miller appealed to the Legislature to leave the state privacy law on the books with a delayed effective date, but the House and Senate conference committee Thursday voted to repeal it.
He said it's possible the Bush administration may allow states that have adequate medical information privacy legislation to be exempted from preemption by the federal regulations.
"Because the federal HIPPA federal regulations are much more constricting, complex and difficult to apply than what is preferred for Hawaii," he said, "an exemption for Hawaii would be highly desirable from almost everyone's perspective, including patients and physicians."
With no state legislation, Miller said, chances of gaining an exemption from federal regulations "will be nil and patients, professionals, insurers, employers and others will have to comply with the burdensome HIPPA (Health Information and Privacy Protection Act) regulations."
The Legislature in a special session last summer suspended the 1999 Hawaii medical privacy law to July 1, this year, to resolve problems raised by medical providers, hospitals and workers' compensation insurers.
Bills were introduced this session to address some of the problems but the proposals weren't given a hearing, said Moya T. Davenport Gray, Office of Information Practices director. "Everyone was bent on repeal."
House and Senate conferees agreed to repeal Act 87 because President Bush said regulations implementing the federal privacy protection act, initiated by the Clinton administration, will remain in effect.
Rep. Ken Hiraki, House Consumer Protection Committee chairman, said the initial House position was: "Let's not rush into anything; let's sit back and take a look at what the federal law means to Hawaii."
But, he said, "Because of probable preemption by the federal law, and to avoid any confusing, inconsistent or overlapping rules, we felt that the most prudent approach at this time was to let HIPPA play itself out, and come back later to see if any gaps need to be addressed for Hawaii."
Sen. Ron Menor, chairman of the Senate Commerce, Consumer Protection and Housing Committee, said the Senate pushed repeal of Act 87 because it has many flaws and defects.
He said privacy standards are needed and the federal regulations will help to protect consumers but there may be gaps where Hawaii may have to impose its own regulations.
He said the federal regulations may eliminate a "free-flow zone" provided in the state act for information exchange among doctors without consents for treatment purposes.
Another potential problem with the federal regulations, he said, is they don't address handling of medical records in the workers' compensation area or use of medical records or private medical information for commercial use or marketing purposes.
"I think the state Legislature should seriously consider in the next session adopting a medical records privacy law that would cover those kinds of areas and not conflict (with the federal law)," Menor said.
Gray said the Hawaii privacy law in general is less detailed than the federal law, which sets standards and tells businesses exactly how to do things.
"There is more certainty in the federal law, but less room for change by businesses. For example, in contracts with business partners, they have to have specific language and specific events taken care of."
Gray said Hawaii's law is far more protective because it covers players the federal law doesn't touch, including health plans, providers, health data clearing houses, bill payers and researchers, and restricts information use to only authorized purposes.
Gray said she believes health care will cost more under the federal law because companies will have to have privacy officers and account for every disclosure of information.
Criminal sanctions -- the biggest concern of the physicians under the state law -- are basically the same under the federal regulations, she said.
Miller said, "If we think Act 87 caused problems, this one has got to be on an order of five times more difficult to comply with."
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