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In Part II, this article examines the justifications for implementing comprehensive national health information privacy regulations, including the personal nature of health information and the increasing threats to personal privacy from the shift to an electronic health information infrastructure. In doing so, it looks at historical attempts by federal and state officials to regulate the use and disclosure of personal health information, and concludes that prior standards have been largely inadequate. In Part III, this article explains the new national health information privacy regulations: (1) what do they cover?; (2) to whom do they apply?; (3) how do they safeguard personal privacy through notice and security provisions?; and (4) do they preempt existing legal privacy protections? Part IV of this article examines two autonomy rules established in the national privacy rule: "informed consent" (for uses or disclosures of identifiable health data for health care-related purposes) and "written authorization" (for uses or disclosures of health data for nonhealth care-related purposes). The article observes that the informed consent rule is neither "informed" nor "consensual." The rule is thus likely to thwart the effective administration of health organizations without benefiting individuals. Requiring written authorization, on the other hand, protects individual privacy to prevent disclosure of information to entities that do not perform health-related functions, such as employers and life insurers. Lastly, this article also examines various contexts in which data can be shared for public purposes under the national privacy rule: to law enforcement officials; for judicial and administrative proceedings; to parents of unemancipated minors; to "significant others"; to public health authorities; for health research; and for commercial marketing.


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Publication Citation

37 Tort & Ins. L.J. 1113-1138 (2002)