Bush Moratorium Effect on Privacy Rule:
Consensus of Legal Opinions
January 26, 2001 -- Phoenix Health Systems, publishers of HIPAAlert,
asked our regular legal columnist, Steve Fox, to write a special
HIPAAdvisor article about President Bush's moratorium. An informal
poll has found a consensus view.
In a memorandum dated January 20, 2001, President Bush issued a
moratorium on the publication and implementation of new federal
regulations. The moratorium is designed to give the new administration
an opportunity to review pending federal regulations. In brief,
the moratorium:
1. Directs executive departments and agencies not to send proposed
or final regulations to the Federal Register for publication unless
and until the applicable Bush-appointed department or agency head
has reviewed and approved the regulatory action;
2. Mandates that regulations previously sent to the Federal Register
but not published are withdrawn from the Federal Register; and
3. Temporarily postpones, for sixty (60) days, the effective date
of regulations that have been published in the Federal Register
but have not yet taken effect.
The final rule establishing electronic transaction standards and
code sets is not impacted by the moratorium at all because it went
into effect on October 16, 2000. With the exception of small health
plans, which have an additional twelve (12) months to comply, covered
entities must be in compliance with the transaction standards by
October 16, 2002.
The impact of the moratorium on the unpublished, proposed HIPAA
regulations is clear: the final rules cannot be published unless
and until they are reviewed and approved by HHS.
The memorandum’s effect on the privacy regulations, which
have already been published, is less apparent. The official stance
of the HHS Office for Civil Rights, which has been charged with
implementing and enforcing the privacy regulations, is a polite
“No Comment.” But an informal poll of HIPAA-knowledgeable
health care attorneys and several health care organizations, including
the American Hospital Association, reveals a consensus view that
the privacy regulations are entirely exempt from the moratorium.
This position is based on a careful analysis of the memorandum,
which states that regulations promulgated pursuant to statutory
or judicial deadlines are exempt from the President’s directive.
HHS promulgated the privacy regulations, as mandated in Section
264 of the Health Insurance Portability and Accountability Act,
because Congress failed to act within the prescribed time frame.
Since the privacy rules were promulgated subject to a statutory
deadline, they are arguably not subject to the President’s
moratorium.
CAVEAT: Of course, it is important to keep in mind that
this view may not ultimately prevail in subsequent administrative
or judicial interpretations, but it represents a reasonable analysis
based on current thinking.
Steve Fox, Esq. , is a partner with the Washington, D.C. office
of Pepper Hamilton LLP. This article was co-authored by Rachel H.
Wilson, an associate at Pepper Hamilton. Pepper Hamilton LLP is
a multi-practice law firm with more than 400 lawyers in ten offices.
http://www.pepperlaw.com/
Disclaimer: This information is general in nature and should not
be relied upon as legal advice. Only your attorney is qualified
to evaluate your specific situation and provide you with customized
advice.
January 25, 2001
Privacy Rule May Be Delayed Afterall. American Hospital Association's
(AHA) "definitive word" came from AHA's legal council,
not the Bush Administration, according to Health Data Management.
In a fax update yesterday, the AHA stated the final HIPAA Privacy
rule was promulated pursuant to statutory or judical deadlines and
is therefore exempt from the delay. Full
Story.
January 24, 2001
AHA Concludes Reg Delay Does Not Effect HIPAA, according to
a fax update from the American Hospital Association to its members.
The final HIPAA Privacy rule was promulated pursuant to statutory
or judical deadlines and is therefore exempt from the delay. Text
of Memo.
UPDATE: The Health Privacy Project's commentary also contends
the order excludes the HIPAA rule. Full
Story.
January 22, 2001
Bush Delays Regulations Following his inauguration on Saturday,
President Bush sent a memo to his staff delaying all regulations,
according to an Associated Press report. No new regulations are
to be sent for publication in the Federal Register - unless specifically
approved by the incoming administration. Regulations that have been
published, but have not yet taken effect, will be delayed for 60
days.
UPDATE: While the final HIPAA Privacy Rule falls into the
"published, but not effective" realm, it may be exempt
as being "promulgated pursuant to statutory or judicial deadlines."
The official DHHS web site has not been updated with a new effective
date for the Privacy Rule.
Full Story. Text
of Memo.
|
