32 J.L. Med. & Ethics 670 (2004)
Challenging Themes in American Health Information Privacy and the Public's Health: Historical and Modern Assessments

handle is hein.journals/medeth32 and id is 670 raw text is: SYMPOSIUM

Challenging Themes
in American Health
Information Privacy
and the Public's
Health: Historical
and Modern
James G. Hodge, Jr. and
Kieran G. Gostin

rotecting the privacy of individually-identifiable
health data is a dominant health policy objective
in the new millennium. Technological, eco-
nomic, and health-related reasons substantiate the de-
velopment of a national electronic health information
infrastructure.' Through this emerging infrastructure,
billions of pieces of health data of varying sensitivities
are exchanged annually to provide health care services
and service transactions, conduct health research, and
promote the public's health. These multi-purpose, rapid
exchanges of electronic health data, far removed from
the typical disclosure of health information through
the doctor/patient relationship of yesteryear, contribute
to heightened individual concerns about identifiable
health data. Responding to American fears and per-
ceptions of actual and potential privacy abuses, policy-
makers have recently developed new, modern privacy
protections through legislative and regulatory laws, as
well as ethical and industry codes.2
Modern health information privacy protections are
reflected in federal regulations developed by the federal
Department of Health and Human Services (DHHS) pur-
suant to the Health Insurance Portability and Ac-
countability Act of 1996 (HIPAA).3 As a national privacy
standard, the HIPAA Privacy Rule applies to identifi-
able health data (e.g. protected health information, or
PHI) used or disclosed by covered entities (e.g., health
care providers, health plans, and health care clearing-
houses), their business associates, and others perform-
ing covered functions. The Rule requires covered en-
tities to establish and adhere to a full and detailed range
of privacy protections and fair information practices.
The Privacy Rule vests individuals with what are
viewed as modern, comprehensive protections. Pro-
tecting health information privacy, however, is not new.
Policymakers at every level of government and the pri-
vate sector have sought to protect the privacy of health
data for decades. Thousands of legislative and regula-
tory proposals have been introduced and passed with
the intent to better protect the privacy of identifiable
health data in a wide array of settings. The result is a
myriad of privacy laws and policies that apply to selec-
tive health data at varying levels of government in spe-
cific settings. As a national regulatory standard, the
HIPAA Privacy Rule is submerged within this existing
universe of legal and ethical privacy protections. The
Rule negates laws that are inconsistent with its protec-
James G. Hodge, Jr., J.D, LL.M., is an Associate
Professor, Johns Hopkins Bloomberg School of Public
Health; Adjunct Professor of Law, Georgetown University
Law Center; and Executive Director, Center for Law and the
Public's Health. Kieran G. Gostin, B.A., is a graduate of
Georgetown University with concentrations in the histories
of Socialist and Communist Thought and Latin America.


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