Mechanism

Purpose

Limitations

STATE PROTECTIONS

 

 

Statutes 

Establish confidentiality of the doctor-patient relationship and common tort remedies for breaches of confidentiality.

Statutes do not exist in all states and are not uniform across states. Most do not address the flows of information to secondary users.

Constitutional law

Interpreted as limiting the collection and dissemination of health information

Rights are not clearly delineated and vary from state to state; they are difficult to enforce.

Common law

Prevents public disclosure of private records, defamation.

Generally limited to only widespread disclosures of information to the public or to disclosures to parties without a legitimate interest (i.e., not employers who pay for insurance coverage).

sector are covered under a number of limited laws targeted at specific industries.

In general, government and industry-wide protections are limited in scope. Most health information in the United States is collected and processed by private organizations, which are unlikely to meet the applicable threshold tests for state action. Constitutional protections for informational privacy are subject to interpretation and have not been rigorously enforced. Similarly, the Privacy Act sets rules only for personal data controlled by federal agencies. Other federal statutes that regulate health data processing focus on even narrower sectors of information use. As a result, most health data are entirely outside the protections of either constitutional or federal law, although with the passage of the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191), the public policy context for protecting health information is changing.

Federal And State Protections

Federal and state laws attempt to balance the public's right to access information gathered by the government against the individual's right to



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