Virginia: Sectoral Exceptions Regulated by Other Laws

Sectoral exceptions in the Virginia Consumer Data Protection Act (VCDPA) are designed to prevent duplicative regulation and ensure that data types already covered under stringent federal or sector-specific regulations are not subject to additional state-level compliance requirements. This approach ensures that entities in sectors such as healthcare, finance, and research adhere to consistent, established standards without overlapping regulations.

Text of Relevant Provisions

VCDPA para.59.1-576(C)(4)

"C. The following information and data is exempt from this chapter: 4. Identifiable private information for purposes of the federal policy for the protection of human subjects under 45 C.F.R. Part 46; identifiable private information that is otherwise information collected as part of human subjects research pursuant to the good clinical practice guidelines issued by The International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use; the protection of human subjects under 21 C.F.R. Parts 6, 50, and 56, or personal data used or shared in research conducted in accordance with the requirements set forth in this chapter, or other research conducted in accordance with applicable law;"

VCDPA para.59.1-576(C)(11)

"C. The following information and data is exempt from this chapter: 11. Personal data collected, processed, sold, or disclosed in compliance with the federal Driver's Privacy Protection Act of 1994 (18 U.S.C. § 2721 et seq.);"

VCDPA para.59.1-576(B)

"B. This chapter shall not apply to any (i) body, authority, board, bureau, commission, district, or agency of the Commonwealth or of any political subdivision of the Commonwealth; (ii) financial institution or data subject to Title V of the federal Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.); (iii) covered entity or business associate governed by the privacy, security, and breach notification rules issued by the U.S. Department of Health and Human Services, 45 C.F.R. Parts 160 and 164 established pursuant to HIPAA, and the Health Information Technology for Economic and Clinical Health Act (P.L. 111-5); (iv) nonprofit organization; or (v) institution of higher education."

VCDPA para.59.1-576(C)(13)

"C. The following information and data is exempt from this chapter: 13. Personal data collected, processed, sold, or disclosed in compliance with the federal Farm Credit Act (12 U.S.C. § 2001 et seq.);"

VCDPA para.59.1-576(C)(10)

"C. The following information and data is exempt from this chapter: 10. The collection, maintenance, disclosure, sale, communication, or use of any personal information bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living by a consumer reporting agency or furnisher that provides information for use in a consumer report, and by a user of a consumer report, but only to the extent that such activity is regulated by and authorized under the federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.);"

VCDPA para.59.1-576(C)(3)

"C. The following information and data is exempt from this chapter: 3. Patient identifying information for purposes of 42 U.S.C. § 290dd-2;"

VCDPA para.59.1-576(C)(1)

"C. The following information and data is exempt from this chapter: 1. Protected health information under HIPAA;"

VCDPA para.59.1-576(C)(2)

"C. The following information and data is exempt from this chapter: 2. Health records for purposes of Title 32.1;"

VCDPA para.59.1-576(C)(5)

"C. The following information and data is exempt from this chapter: 5. Information and documents created for purposes of the federal Health Care Quality Improvement Act of 1986 (42 U.S.C. § 11101 et seq.);"

VCDPA para.59.1-576(C)(6)

"C. The following information and data is exempt from this chapter: 6. Patient safety work product for purposes of the federal Patient Safety and Quality Improvement Act (42 U.S.C. § 299b-21 et seq.);"

VCDPA para.59.1-576(C)(8)

"C. The following information and data is exempt from this chapter: 8. Information originating from, and intermingled to be indistinguishable with, or information treated in the same manner as information exempt under this subsection that is maintained by a covered entity or business associate as defined by HIPAA or a program or a qualified service organization as defined by 42 U.S.C. § 290dd-2;"

VCDPA para.59.1-576(C)(12)

"C. The following information and data is exempt from this chapter: 12. Personal data regulated by the federal Family Educational Rights and Privacy Act (20 U.S.C. § 1232g et seq.);"

VCDPA para.59.1-576(C)(9)

"C. The following information and data is exempt from this chapter: 9. Information used only for public health activities and purposes as authorized by HIPAA;"

Analysis of Provisions

Research Data (VCDPA para.59.1-576(C)(4))

The exemption for identifiable private information collected under federal guidelines for human subjects research, such as 45 C.F.R. Part 46 and 21 C.F.R. Parts 6, 50, and 56, ensures that research activities comply with established ethical standards without additional state-level regulation. This is crucial for maintaining consistency in research practices across jurisdictions.

Driver's Privacy Protection Act (VCDPA para.59.1-576(C)(11))

Data regulated by the Driver's Privacy Protection Act of 1994 is exempt to avoid redundancy and ensure that motor vehicle records are managed under a specific federal framework that addresses privacy concerns effectively.

Financial Institutions (VCDPA para.59.1-576(B))

Exempting financial institutions subject to the Gramm-Leach-Bliley Act acknowledges the rigorous data protection standards already in place for financial data, preventing overlapping regulations and ensuring consistent practices across the financial sector.

Health Information (VCDPA para.59.1-576(C)(1), (C)(3), (C)(2), (C)(5), (C)(6), (C)(8), (C)(9))

Protected health information under HIPAA, patient identifying information under 42 U.S.C. § 290dd-2, health records under Title 32.1, and data related to healthcare quality improvement and patient safety under respective federal acts are all exempt. These exemptions recognize the comprehensive federal standards governing healthcare data, ensuring consistency and avoiding conflicting state regulations.

Consumer Reporting (VCDPA para.59.1-576(C)(10))

Activities regulated under the Fair Credit Reporting Act are exempt, as FCRA provides detailed guidelines for handling consumer credit information, ensuring its protection without additional state-level mandates.

Educational Records (VCDPA para.59.1-576(C)(12))

Data regulated by the Family Educational Rights and Privacy Act (FERPA) is exempt, recognizing FERPA's role in protecting student educational records and avoiding duplicate compliance requirements.

Farm Credit Act (VCDPA para.59.1-576(C)(13))

Personal data managed under the Farm Credit Act is exempt to acknowledge the specific regulatory framework governing agricultural financial information, thus preventing redundant compliance efforts.

Implications

For Financial Institutions

• Regulatory Consistency: Financial institutions benefit from adhering solely to GLBA without needing to comply with additional state requirements, ensuring uniform data protection practices.
• Compliance Efficiency: Reduces the administrative burden and costs associated with managing multiple regulatory frameworks.

For Healthcare Providers

• Unified Standards: Healthcare entities follow federal HIPAA standards, avoiding conflicting regulations and ensuring consistent protection of health information.
• Operational Clarity: Simplified compliance requirements improve operational efficiency and reduce the risk of regulatory conflicts.

For Research Institutions

• Facilitated Research: Exemptions for federally regulated research ensure adherence to ethical and privacy standards without additional state-level intervention.
• Enhanced Data Use: Encourages the use of deidentified and limited data sets for research purposes, fostering innovation while protecting privacy.

For Educational Institutions

• FERPA Compliance: Educational institutions continue to follow FERPA standards without additional state mandates, maintaining clear data protection responsibilities.

For Consumer Reporting Agencies

• FCRA Adherence: Ensures compliance with the FCRA without conflicting state regulations, providing a clear framework for protecting consumer credit information.

These exemptions help streamline regulatory compliance for various sectors by acknowledging existing federal frameworks, thereby reducing the complexity and cost of adherence while ensuring robust data protection standards are maintained.