Ride the Waive: Health Data Privacy Before, During, and After the COVID-19 Pandemic in the United States and European Union [Note]

Abstract

With the declaration of the end of the public health emergency, the Department of Health and Human Services waivers permitting the use and disclosure of protected health information have since expired. These waivers promoted flexibility to healthcare providers and their business associates to aid public health responses to the novel coronavirus. However, that flexibility delicately balances a patient’s right to privacy and the disclosure of limited data for the public welfare. This Note will show how the United States and the European Union adapted their health privacy laws to address the unprecedented challenges emerging from the COVID-19 pandemic. It explores the efficacy of varying scopes of health privacy laws, determining that neither a broad nor narrow framework is individually successful in responding to such crises. Since the waivers, dismantling health data processing systems has had detrimental costs, given the rise of COVID-19 cases. This Note explores the potential value of standing waivers for COVID-19 health data and the next steps to expand their applicability to other highly transmissible viruses to promote public health without completely absolving a patient’s right to privacy.