How can you dealPreemption

241
with the needed
decision
crosswalking
work sheetof HIPAA with local laws? There ar
e only two ways I can see. First, the Practice Organization of the American Psyc
hological Association and APAs insurance sales arm, APAIT, sell an online continu
ing education program which allows you to print out state-specific HIPAA forms.
See <http://www.apapractice.org/>. This is the result of an extensive crosswalki
ng effort and was created by lawyers and psychologists but still contains a stro
ng disclaimer. Pricing begins at $175 for those members of APA who pay the clini
cians special assessment and rise from there to $575 for others. Second, consider
my approach in which I have made two simplifying assumptions which seem justifi
1.
ed:
You already know a great deal about your local laws since you were train
ed there, have attended ethics and legal issues continuing education programs, a
nd had lively
2.
You arediscussions
already inwith
compliance
your colleagues.
with your local rules. Your procedures and
Therefore,
client education
you canmaterials
read the HIPAA
followrules
your and
rules.
compare them with your current pract
ices form
This
and make
is not
preemption
meant todecisions.
be the definitive method for evaluating the circumstan
ces of a conflict between state laws and HIPAA nor a way to assure an absolutely
correct conclusion. It is meant to help you collect the necessary information a
nd then think through the issues. As you proceed take all the time and writing s
pace youb.
Preemption
1.
a.
Background
need.
decision
Whatwork
is the
has
been
sheet
issue
the
forprocedure
intherapists
conflict?
in the
Summarize
past inandthis
clarify.
office or agency
(if relevant)?
c.
What does the HIPAA privacy rule say about the issue? (Include c
itation(s) to a section(s) of HIPAA.) Note: HIPAA applies only to CEs (Covered E
ntities) and state law may apply to all kinds of clinicians, non-CEs (such as al
l psychologists)
d.
What
or non-CE
does the
parts
state
of law
a hybrid
or regulation
entity. say? (Include citation(s)
as necessary) You
may need to look at each part, section, or even sentence
. Some examples are laws and regulations on medical records, genetic testing, HI
V, mental health/substance abuse, pharmacy, and workers compensation. Also look
at your e.
states What
licensing
does your
law for
professions
your profession.
Code of Ethics say about this issue? (
where relevant). The American Psychological Associations code has been revised fo
r June 2003 and is online at <http://www.apa.org/ethics/> The code of the Nation
al Association of Social Workers is at <http://www.socialworkers.org/pubs/code/
default.asp> and the code of the American Counseling Association is at <http://w
2.
ww.counseling.org/resources/ethics.htm>
Generally,
Exceptions
HIPAA istoseen
preemption
as preempting state law but there are exceptions (resta
ted herea.for therapists).
The issue relates
Does thistoissue
some kind
fit any
of public
of thesehealth
four?activities such
as reporting, surveillance, investigation, intervention or compliance/enforcemen
t of health plansq or other
No,CEs.
the issue doesnt and so HIPAA does not apply, local l
aws do. Note: The exception below is very like the one above but is subtly legal
ly different.
b.
The Secretary of Health and Human Services has granted an except
ion and so you should follow the state law. These exceptions include when it's n
ecessary to prevent fraud and abuse; ensure state regulation of insurance; permi
t state reporting of health care delivery or costs; serve compelling public heal
th, safety or welfare needs; address a compelling reason that outweighs the priv
acy intrusion;
q
orNoregulate
exceptioncontrolled
has been made
substances.
and so HIPAA does not apply, local la
ws do. c.
qThe statethe
itlaws
isstate
not
andlaw
possible
HIPAA
is an
aretoobstacle
contrary
comply with
intothat:
both OR the purposes and
achieving
intent d.
of HIPAA.State
q
lawThey
or regulation
are not contrary
is moreandstringent
so HIPAA(more
applies.
protective) than
the Privacy Rule.
1.
ProhibitsDoes
or restricts
the state the
law use
do any
or disclosure
of these sixofthings?
PHI in c
ircumstances where
q Yes
Note
HIPAA
thatqwould
this
No rule
allowdoes
suchnot
useapply
or disclosure?
when disclosure is to the cli
ent or where the Secretary of DHHS has decided the disclosure is necessary for H
IPAA.
2.
Gives greater rights of access or amendment to the clien
t?
Note
q Yesthatqthis
No does not apply to state laws that require you to
release information about a minor to parents. For example, if your local laws re
quire you to notify a parent before providing treatment to a minor, HIPAA does n
ot take precedence.
3.
Provides more information to the client about the use or
disclosure of PHI or the clients rights and remedies concerning such use or disc
losure?
4.
q Yes When
q Noit concerns the release of information through cons
ent or authorizing the disclosure,
q
specifies
the local
a narrower
law doesscope
one orormore
duration
of these:
of the re
lease.
q
reduces the coercion involved in obtaining the c
onsent or authorization.q
erects a barrier or obstacles to others attempts
to obtain PHI.
q
increases privacy protection for individuals in
this area.
5.
q Yes Requires
q No more detailed information to be included in the
records or that6.
qyou
Yesmaintain
qProvide
No them
greater
for aprivacy
longer protection
period?
to the individual in
some other ways?If
q any
Yes ofq these
No six are true - you answered yes - HIPAA does not

3.apply. qDecisionThis
or Disposition
issue does fit one or more of the exceptions so state law a
pplies. q
IThis
cannot
issuemeet
doesboth
notHIPAA
meet and
one state
of thelaw
exceptions
and I cannot
so HIPAA
decide
applies.
what
to do soup:
_________________________________
Privacy
Follow
_________
Date
qofficer
I am Other:
My
-_____________________________
referring
Name
legal_____________________________________________
professional
state
Procedure
counsel
agency:
the issue
organization
orto:
Decision
__________________________
__________________________
Date
Signature
_________
Date

_____________________________
Procedure or Decision __________________________
Signature
_________
Date

_____________________________
Procedure or Decision __________________________
Signature