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In the last decade, since the passage of the Affordable Care Act, debates regarding access to health care and relatedly, of federalism, have focused on who sets the rules for healthcare payment. Numerous articles have been written about the ACA, about Medicaid programs, and about future directions in universal healthcare coverage. But money is not the only currency that access to health requires. A medical professional cannot treat a patient without health data. And the legal literature has not fully engaged with the question of who sets the rules for healthcare data exchange. Those rules have changed drastically in the last few years. This Article tells the story of how control over health data regulation has shifted from state to federal entities. Unlike the case with healthcare payment, the federalization of this area of health law has occurred with far less fanfare, but with consequences that are no less important for the healthcare system.
The federalization of health data regulation has lessons for legal regulation more generally. Health data regulation is a relatively recent area of lawmaking. Federal involvement has been even more recent, with the vast majority of engagement having occurred in the last two decades. As a result, we have seen new kinds of federalism, with which existing legal literature has yet to engage. Most prominently, the involvement of private entities in setting the rules of engagement in government, a phenomenon that has received sustained attention in its own right in the last few decades, have played a role in setting the rules of federalism in this space. As the federal government has formally or informally deputized federal functions ever increasingly to private players, it has been those private players that have displaced state laws and programs. The novelty of health data regulation means that such privatized displacement of state law—what I call privatized preemption —is most pervasive in the health data regulation context. Thus, health data regulation offers a vital case study for the phenomenon more generally.
Craig Konnoth, Associate Professor of Law, University of Colorado Law School. An expert in health and civil rights law, Professor Konnoth teaches Health Law, Property Law and Sexuality and the Law. He recently published an essay, Narrowly Tailoring the Covid-19 Response in the California Law Review. His publications have appeared or will appear in the Harvard Law Review, the Yale Law Journal, the Stanford Law Review, the Penn Law Review, the Iowa Law Review, the online companions to the Penn and California Law Reviews, in numerous health law journals, and as chapters in edited volumes. He is also active in LGBT rights litigation, and has filed briefs in the Supreme Court and the Tenth Circuit on LGBT rights issues. Professor Konnoth is formerly a Deputy Solicitor General with the California Department of Justice, where his docket primarily involved cases before the United States Supreme Court, in addition to the California Supreme Court and Ninth Circuit Court of Appeals. He holds a J.D. from Yale, and an M.Phil. from the University of Cambridge. He clerked for Judge Margaret McKeown of the Ninth Circuit Court of Appeals.