HHS privacy reg would pile federal laws on top of state
Now that Congress has missed its deadline to pass medical record confidentiality legislation, the Department of Health and Human Services (HHS) is poised to publish a proposed rule later today that would cover medical records and health information maintained or transmitted electronically.
The Health Insurance Portability and Accountability Act of 1996 required HHS to develop regulations in the event Congress failed to pass a bill. Congress could still make a last ditch effort to extend its own deadline, which came and went in August, but that is becoming increasingly unlikely. Doug Peticord of the Washington, DC- based Washington Health Advocates, says Congress flirted with the notion of extending their own deadline until Oct. 1, 2001. "That made a very brief appearance on one of the Appropriations bills and got dropped right back out."
From a provider standpoint, passing the torch to HHS has two major flaws. Peticord estimates that roughly 70% of all records are still on paper, and the rule does not address paper claims. "It is not going to have a lot of impact on many providers," he argues. "You are only addressing 30% of the problem."
But the even bigger problem is that the HHS regulation will not pre-empt state laws. Only Congress can do that. "You are going to have an absolute nightmare," asserts Roy Bussewitz, vice president of managed care at the National Association of Chain Drug Stores, in Alexandria, VA. Not only will providers have to master both state and federal confidentiality laws, but they will have to determine which law supercedes the other.
Once it is published, the proposed rule will carry a 60-day comment period, and the regulation could be final as early as February 2001.
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