HIPAA Changes in the HITECH Act of 2009: Relationship to Other Laws
House bill Sec. 4421
Senate bill Sec. 13421
Conference agreement Sec. 13421
This text is from the Conference Committee Report
Current Law
Under Section 1178 of the Social Security Act, as amended
by HIPAA, the security standards preempt any contrary
provision of state law, with certain specified exceptions
(e.g., public health reporting). Pursuant to HIPAA Section
264, however, the privacy rule does not preempt a contrary
provision of state law that is more protective of patient
medical privacy. Psychotherapy notes (i.e., notes recorded by
a mental health professional during counseling) are afforded
special protection under the privacy rule. Almost all uses
and disclosures of such information require patient
authorization.
House Bill
The House bill would apply the preemption provisions in SSA
Section 1178 to the requirements of this subtitle and
preserve the HIPAA privacy and security standards to the
extent that they are consistent with the subtitle. The
Secretary would be required by rulemaking to amend such
standards as necessary to make them consistent with this
subtitle.
Senate Bill
The Senate bill includes the same provisions; with the
additional requirement that the Secretary revise the
definition of psychotherapy notes to include test data that
are part of a mental health evaluation.
Conference Agreement
The conference agreement takes language from the House
bill. The provision related to psychotherapy notes is moved
in the conference report.