Applies to all facilities and covered entities
Posted January 2, 2003
By Jerri Lynn Ward, J.D., Garlo Ward, P.C.
It was a crisply cool and sunny Saturday morning and there I was in the parking lot of the Wal-Mart in our little Texas Hill Country town. Wal-Mart is the closest thing we have to a mall, and along with the Dairy Queen, it is one of the social centers of the town.
Our little town doesn’t have a Starbucks, so Wal-Mart is where the men of the town gather to have coffee on Saturday mornings. They like to go there so that they can pick up a few tools and landscaping supplies on the way out. Alma , at the little Wal-Mart lunch counter, makes the best coffee I’ve ever tasted – none of those mochas or fluffy frapaccinos – just good, basic, strongly-brewed Folgers.
As I walked in, I saw my family doctor, Dr. Eberhardt, sitting at a table with Sam Hershey, administrator of the Serendipity Nursing Home. To his left was Dale Nichols, the town pharmacist, and to his left was Mr. Heiliginthal: successful businessman, WWII veteran and Fightin’ Texas Aggie.
“Good morning, Suzanne Roberta!” hailed Dr. Eberhardt. “Come join us.”
Dale Nichols looked at me, his eyes full of apprehension. He’s looked at me like that ever since we were six years old and I tackled him to the ground so I could kiss him. He ran all the way home to his mama, and he’s never lived that down.
As I sat down and gave my order for a coffee and donut to Alma , the men resumed their conversation. Sam Hershey and Dr. Eberhardt were talking about this new law called HIPAA.
“Why did they pass HIPAA?” I asked.
“They wanted employees to be able to take their insurance coverage from job to job. And they wanted to encourage billing and sharing of information electronically so as to make things more efficient and cost effective,” said Dr. Eberhardt. “And, since they did all that, they had to pass provisions to keep the information private.”
“Yeah, they didn’t want new employers finding out about employee’s physical conditions,” said Mr. Hershey.
“And, they don’t want pharmacists like me giving information about patients to pharmaceutical companies. The pharmaceutical companies might want to send the patients information on drugs,” added Dale.
“Yeah, have to keep those mailboxes free of junk mail,” said Mr. Hershey.
“And now,” said Dr. Eberhardt, “I read in a digest that a bunch of fancy lawyers from the Northeast are talking about this thing called “preemption”. All us health care providers are going to have to know whether we have to do things based on state law or on federal law. They are saying that it’s going to cost providers thousands of dollars to determine which applies to different situations. So much for efficiency and effectiveness.”
“What I am hearing, is that a lot of small and rural providers are either ignoring HIPAA, or going back to paper claims because of things like this,” added Mr. Hershey.
“Well, I guess Congress had good intentions when they passed HIPAA,” said Dr. Eberhardt.
Mr. Heiliginthal, who had been quietly listening, snorted at that.
“Good intentions?! Suzanne Roberta, you know something about good intentions. Tell us that story about your Aunt Alice,” he said.
Mr. Heiliginthal loves to hear the story about my Aunt Alice and her good intentions, though he’s heard it many times over the years.
It was a cold February day up in the Hill Country. My Aunt Alice lived with Uncle Danny on a little spread outside of town up in the hills. Uncle Danny had some fine hunting dogs that he kept penned up outdoors. Uncle Danny was out of town, and Aunt Alice started worrying about the dogs getting too cold.
Now these dogs were not your lapdog types who would gaze fondly into your eyes. They were working dogs living only for hunting birds. They might gaze fondly at you if you were holding a shotgun, but, they’d really only be focusing on the gun – not you. Uncle Danny’s dogs were so serious about hunting that if you couldn’t shoot well enough to bring down some birds, they’d get real annoyed. Miss a few shots and they’d give you a contemptuous look and then they’d flounce off into the brush to find a better hunter.
On that cold day, Aunt Alice, with the best of intentions, opened the pen to bring the dogs into the house to get warm. The dogs weren’t having any of that. Instead, soon as the gate was open, they bolted down to old man Rogendorff’s duck pond and killed two of his prized and beloved pet ducks.
When Aunt Alice got down to the duck pond to retrieve the dogs, Mr. Rogendorff was beside himself about his pet ducks. Aunt Alice had to promise to replace the ducks before he’d calm down.
Time passed, and soon it was late spring. Aunt Alice, who was the head teller at the town’s bank, was discussing the situation with the other tellers.
“I just have to find some ducks for Mr. Rogendorff,” she lamented.
“I know where you can get some ducks,” said one of the tellers. “There’s plenty of ‘em down at the city park on the Guadalupe.”
So . . . the Great Hill Country Duck Hunt was on.
After work, and on her way to the city park, Aunt Alice stopped at the 7-11 and bought some bread to lure the ducks. She also bought a few chilled bottles of Cold Duck for the post-hunt celebration.
The bank ladies arrived at the park and tromped over to the river in their suits and high heels. There was a selection of ducks on the river’s bank at that time, so they decided to sit at the nearby picnic table and have a little nip of Cold Duck while they laid their plans.
After that little nip-and a few additional little nips—the ladies were ready. They counted to three and pounced on their selected ducks. To their dismay, the ladies’ Cold Duck-enhanced conviction that catching the ducks was going to be easy was quickly replaced by near panic. Aunt Alice would get hold of one of the ducks and it would beat her in the face with its wings. The ladies would get control of one wing and the other wing would still be flapping. Before this, they never imagined how big a wing-span a little duck possesses- or how strong ducks really are.
Finally, the ladies got two of the ducks subdued enough to stick them in the banker’s box they had brought with them. They took the closed box to Aunt Alice’s car and stuck it in the back seat.
Then they returned to the picnic table to finish off the rest of the Cold Duck. As the tired lady duck-hunters enjoyed the post-hunt celebration, Aunt Alice, out of the corner of her eye, noticed some movement in her car.
Sure enough, the ducks had escaped the banker box and were flying from one end of the car to the other, dropping feathers along the way. And, feathers weren’t all the ducks were dropping. They were dropping what ducks drop when they get really scared.
As Aunt Alice describes it while illustrating with a wide sweep of her arm, “Those ducks were a-swooshin’ and a-squirtin’, a-swooshin’ and a-squirtin’!” Before the ladies could catch the ducks again, the little escapees had filled the interior of Aunt Alice’s car with a thick layer of duck droppings.
The Great Hill Country Duck Hunt ended with Aunt Alice driving down Main Street with her head stuck out the car window so she could breathe—her good intentions turned into duck poop.
Which brings us back to HIPAA . . .
Commentary: With regard to privacy issues, do you use State law or HIPAA?
Answer? It depends. In general, HIPAA trumps State law unless State law meets some exceptions. Boiled down, the exceptions are:
1. If the Secretary of HHS decides State law should be used because of a variety of reasons.
2. If State law is more stringent.
3. If State law requires reporting of disease, injury, child abuse, birth, or death, or for the conduct of public health surveillance, investigation, or intervention.
4. If State law requires a health plan to give information for management or financial audits, program monitoring and evaluation, or the licensure or certification of facilities or individuals.
This issue of preemption is as slippery as those ducks Aunt Alice was after. It’s so slippery that a bunch of lawyers from the Northeast are opining that deciding which law to use is going to cost beaucoup bucks. As a result, John R. Lumpkin, M.D., M.P.H. Chair, National Committee on Vital and Health Statistics, has written a letter to Secretary Thompson saying in part: “large number of witnesses said that issues of preemption make compliance much more difficult, costly, and complicated. To determine whether state privacy laws or the HIPAA Privacy Rule applies to the multitude of health privacy issues, covered entities must obtain a comprehensive preemption analysis, detailing whether state or federal law applies.” For the full text of the letter go to: http://ncvhs.hhs.gov/021125lt.htm
And, guess where all that money is going to go for the preemption analysis? You got it—lawyers.
After reading about this, I came up with a less expensive plan that we could use to decide whether State or Federal law wins. I am so excited about this plan that I am recommending that we all write Secretary Thompson about it. I have prepared a letter that you may use if you would like to join this letter writing campaign.
The Honorable Tommy G. Thompson
U.S. Department of Health and Human Services
200 Independence Avenue, SW
Washington , DC 20201
Re: HIPAA Preemption Issue
Dear Secretary Thompson:
I am a health provider writing to you about the HIPAA preemption issue. I am sure that you are aware that lawyers from the Northeast are advising us that we are going to have to spend a bunch of money on them to tell us whether we are supposed to go by State or Federal law when it comes to this HIPAA privacy thing. Never being one to just complain about problems, I have come up with a solution that I invite you to use.
I think that whenever a question comes up as to whether we need to go by State or Federal law, we should use an ancient custom that has fallen by the wayside in recent years. That custom is: The Duel
We could organize duels in each state between State regulators and Federal regulators to decide whether to use State or Federal law. Of course, we won’t have the regulators use real pistols. Instead, we will have them use pistols that shoot paint-balls. That way, we will only have to pay for supplies such as pistols and paint-balls and for dry cleaning the clothes of the losing side. I believe that this plan will be a lot cheaper than paying for lawyers.
Now, I understand that people in the Northeast and California are afraid of guns, even guns that just shoot paint-balls. I have a solution for that too.
Instead of paint-ball pistol duels, State and Federal regulators in the Northeast and California would go over to the nearest public playground. Once there, they decide the winner by chicken fighting on the monkey bars. Chicken fights will be even cheaper than paint-ball pistol duels because we won’t have to buy the pistols and paint-balls. Plus, the use of monkey bars at public playgrounds will be free which will also save money.
This will be a good thing since lawyers who practice in the Northeast and California are a lot more expensive than lawyers from other states.
If you want any help with implementing this innovative plan, please call me. I will be happy to help with the details.
Very truly yours,
In the meantime, if you have a preemption question, you will have to call a lawyer.
To be continued . . .
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
505 East Huntland Drive, Suite 335
Austin, Texas 78752-3714 USA