source: http://radar.oreilly.com/2012/08/hawaii-health-care-law-sim...
Hawaii's new law cuts through health care complexity. It's a move that should be lauded and copied.
In an era characterized by political polarization and legislative stalemate, the tiny state of Hawaii has just demonstrated extraordinary leadership. The rest of the country should now recognize, applaud, and most of all, learn from Hawaii’s accomplishment.
Hawaii enacted a new law that harmonizes its state medical privacy laws with HIPAA, the federal medical privacy law. Hawaii’s legislators and governor, along with an impressive array of patient groups, health care providers, insurance companies, and health information technologists, agreed that having dozens of unique Hawaii medical privacy laws in addition to HIPAA was confusing, expensive, and bad for patients. HB 1957 thus eliminates the need for entities covered by HIPAA to also comply with Hawaii’s complex array of medical privacy laws.
Hawaii’s knotty web of state medical privacy laws is not unique. There are vast numbers of state health privacy laws across the country — certainly many hundreds, likely thousands. Hawaii alone has more than 50. Most were enacted before HIPAA, which helps explain why there are so many; when no federal guarantee of health privacy existed, states took action to protect their constituents from improper invasions of their medical privacy. These laws grew helter-skelter over decades. For example, particularly restrictive laws were enacted after inappropriate and traumatizing disclosures of HIV status during the 1980s.
These laws were often rooted in a naïve faith that patient consent, rather than underlying structural protection, is the be-all and end-all of patient protection. Consent requirements thus became more detailed and demanding. Countless laws, sometimes buried in obscure areas of state law, created unique consent requirements over mental health, genetic information, reproductive health, infectious disease, adolescent, and disability records.
When the federal government created HIPAA, a comprehensive and complex medical privacy law, the powers in Washington realized that preempting this thicket of state laws would be a political impossibility. As every HIPAA 101 class teaches, HIPAA thus became “a floor, not a ceiling.” All state laws stricter than HIPAA continue to exist in full force.

The harmful consequences of the state medical privacy law thicket coexisting with HIPAA include:
Other states should follow Hawaii’s lead by having the boldness and foresight to wipe their own medical privacy laws off the books in favor of a simpler and more efficient national solution that protects privacy and facilitates clinical care. Our national legal framework is HIPAA, plus HITECH, a 2009 law that made HIPAA stricter, plus other new federal initiatives intended to create a secure, private, and reliable infrastructure for moving health information. While that federal framework isn’t perfect, that’s where we should be putting our efforts to protect, exchange, and make appropriate use of health information. Hawaii’s approach of reducing the additional burden of the complex state law layer just makes sense.
Some modest progress has occurred already. A few states are harmonizing their laws affecting health information exchanges (e.g., Kansas and Utah). Some states exempt HIPAA-regulated entities subject to new HITECH breach requirements from also having to comply with the state breach laws (e.g., Michigan and Indiana). These breach measures are helpful in a crisis, to be sure, by saving money on wasteful legal research, but irrelevant from the standpoint of providing care for patients or designing technology solutions or system improvements. California currently has a medical law harmonization initiative underway, which I hope is broadly supported in order to reduce waste and improve care.
To be blunt, we need much more dramatic progress in this area. In the case of health information exchange, states are not useful “laboratories of democracy“; they are towers of Babel that disserve patients. The challenges of providing clinical care, let alone making dramatic improvements while lowering costs, in the context of this convoluted mess of state laws, are severe. Patients, disease advocacy groups, doctors, nurses, hospitals, and technology innovators should let their state legislators know that harmonizing medical privacy laws would be a huge win for all involved.
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© 2013 Created by Clayton-Hoyt Uyehara.
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