Re: Health Portability Bill --- Pre-emption of State law

[Mimi Azrael <mimi@azrael.com>]

  Bob,
  Apart from ideological arguments, there are practical reasons to oppose
  pre-emption.  If pre-emption language is included in the law, you can bet it
  will cause confusion, expense, and chill the exercise of privacy rights,
  just as  ERISA federal pre-emption, in most cases, has eliminated common law
  and state law remedies employees once had against their employers in that
  subject area.   Depending on where you sit,  that may be a good thing or a
  bad thing.  Where I sit, I see federal pre-emption benefiting industry, not
  individuals.  Pre-emption gives defendants the leverage to avoid
  responsibility for wrongdoing because consumer lawsuits filed against them
  in state court are immediately removable to federal court, where judges are
  seldom receptive to consumer claims and the cost of litigation (for most
  consumers) is prohibitive.  Federal judges are overwhelmed already, as
  federal dockets grow.  Ask a federal judge what he or she thinks about new
  laws adding to federal jurisdiction!  The ones who suffer from the
  frustration of federal judges drowing in their caseloads are the injured
  plaintiffs who'd rather sue in state court and invoke state laws to begin with.
   
  Mimi Azrael
  Baltimore, MD
  
  At 05:19 PM 7/29/96 -0400, you wrote:
  >I am not following the progress of this bill in conference, but I saw
  >Jamie's message about the privacy part.  My sources tell me that he got it
  >wrong.  The limited privacy language in the bill is either being dumped or
  >narrowed to a limited requirement that the Secretary propose some
  >legislation later on.  There isn't anything much in the bills to begin
  >with.
  >
  >I don't understand how a federal bill with no privacy language can preempt
  >state law.  What is state law being preempted with?
  >
  >Anyhow, if Jamie has some more information, it would be welcome.  Before
  >tilting at windmills, you might at least be certain that there is a
  >windmill there.
  >
  >Bob
  >
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  >+   Robert Gellman          rgellman@cais.com   +
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