Following up on Ms. Langer's message, I note that the author's point concerning the relationship between the ERISA and HIPAA preemption schemes is expressly supported by HHS's preamble to the 12/28/2000 final privacy rule. However, I do not share Ms. Langer's opinion that few if any state laws will relate to plans so as to be preempted by ERISA because I do understand that these state laws are directed at record keepers, such as plans and providers. Furthermore ERISA fiduciaries currently have an obligation to safeguard PHI from inappropriate disclosure under the general fiduciary responsibility standards found in ERISA � 404, 29 U.S.C. � 1104. In addition, these state privacy laws would disrupt the uniform national administration of ERISA plans that Congress intended ERISA preemption to preserve according to the U.S. Supreme Court's March 21, 2001, opinion in Egelhoff v. Egelhoff (holding that a state beneficiary designation statute has a prohibited connection with ERISA plans because it interferes with nationally uniform plan administration.) This opinion can be accessed at the following link: http://supct.law.cornell.edu/supct/html/99-1529.ZS.html
In view of the Supreme Court's recent Moran opinion, perhaps the more salient issue is whether policyholder privacy rules codified in state insurance codes are preserved from ERISA preemption under the insurance law exclusion from ERISA preemption. In any event, Ms. Langer's point about the need to carefully track the judicial developments in this area is well taken, and I therefore direct other attorneys and HIPAAholics to a May 28, 2002, opinion of the U.S. Court of Appeals for the Fourth Circuit (whose jurisdiction includes Maryland, Virginia, West VA, and the Carolinas) in Darcangelo v. Verizon, No. 01-1679. You can access the opinion by following this link: http://pacer.ca4.uscourts.gov/cgi-bin/getopn.pl?OPINION=011679.P David Ermer Gordon & Barnett 1133 21st St., NW, Suite 450 Washington, DC 20036 202-833-3400 ext 3009 (voice) 202-223-0120 (fax) >>> "Langer, Judi" <[EMAIL PROTECTED]> 07/09/02 11:08AM >>> In principle, I agree with the author's point. Practically speaking, though, I suspect there will be few if any state privacy laws that sufficiently "relate to" employee welfare benefit plans so as to be preempted by ERISA. How strictly "relate to" is construed will, of course, depend on the case law in the federal circuit courts of appeal. Judi Judith A. Langer, Attorney HIPAA Project Director Privacy Official Cobalt Corporation Legal Department 401 W. Michigan Street, C-10 Milwaukee, WI 53203 Phone (414)-226-6062 Fax (414)-226-6229 E-mail: [EMAIL PROTECTED] This electronic message is intended only for the use of the addressee(s) named above and may contain legally privileged and/or confidential information. If you are not the intended recipient of this message, you are notified that any dissemination, distribution or copying of this message is strictly prohibited. If you received this message in error, please immediately notify the sender by telephone and delete the original message. Thank you for your cooperation. -----Original Message----- From: Tomak-Maurer, Tonya (Chicago) [mailto:[EMAIL PROTECTED]] Sent: Sunday, July 07, 2002 10:36 AM To: '[EMAIL PROTECTED]' Subject: State Preemption and ERISA Anyone have any thoughts on HIPAA state pre-emption and ERISA. I found the below paragraph in a published article...any concurring or differing opinions. "In general, HIPAA preempts all state laws that establish privacy standards that are contrary to the Privacy Rule. However, state laws that are deemed to be "more stringent" than the Privacy Rule are excepted from preemption by HIPAA. Therefore, the Privacy Rule establishes a "federal floor" approach whereby many state privacy laws will continue in effect. However, HIPAA does not change the traditional preemption analysis under ERISA, whereby any state law that "relates to" an employee benefit plan is preempted by ERISA, except for insurance regulation. Therefore, self-insured health plans arguably would continue to be exempt from state privacy laws under current ERISA preemption analysis leaving only insured health plans and health plans exempt from ERISA (such as church and governmental plans) to be subject to state laws that are more stringent than the Privacy Rule." Thanks, Tonya W: 312.704.2494 > Notice of Confidentiality > This transmission contains information that may be confidential and that > may also be privileged. Unless you are the intended recipient of the > message (or authorized to receive it for the intended recipient), you may > not copy, forward, or otherwise use it, or disclose its contents to anyone > else. If you have received this transmission in error, please notify us > immediately and delete it from your system. > > The WEDI SNIP listserv to which you are subscribed is not moderated. 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