In a July 1 letter to Health and Human Services (HHS) Secretary Xavier Becerra, Senators Michael Bennet (D-Colo.) and Catherine Cortez Masto (D-Nev.) urged HHS to use its influence to update the Privacy Rule under the Health Insurance Portability and Accountability Act (HIPAA) following the U.S. Supreme Court ruling in Dobbs v. Jackson Women's Health Organization to overturn Roe v. Wade.
A press release on the matter states that “The Privacy Rule defines and limits when an individual’s protected health information may be used or disclosed by covered entities, like healthcare providers and insurers. Currently, HIPAA does not prevent the disclosure of protected health information, including information related to abortion and other reproductive healthcare, to law enforcement agencies. HIPAA permits covered entities to disclose this information if issued in a court-order, a court-ordered warrant, a subpoena, or summons. For patients living in states criminalizing reproductive health services, the Privacy Rule does not offer enough protection and jeopardizes the patient-provider relationship.”
“Some entities, like Crisis Pregnancy Centers, which offer limited medical services, are not required to follow the HIPAA Privacy Rule at all,” the release adds. “These entities often do not include abortion as a viable medical option, even in the case in which the mother’s life is at risk, and should be required to follow the same patient protection measures as all other providers.”
HHS has recently been taking steps to protect the privacy of patients seeking reproductive healthcare. On June 30, we reported that “The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced new guidance to help protect the privacy of patients seeking reproductive healthcare, as well as their providers. ‘On the heels of the Supreme Court ruling in Dobbs vs. Jackson Women’s Health Organization, where the right to safe and legal abortion was taken away, President Biden and HHS Secretary Xavier Becerra called on HHS agencies to take action to protect access to sexual and reproductive healthcare, including abortion, pregnancy complications, and other related care,’ an article on the guidance says.”
Regarding the guidance on HIPAA, we wrote that “The article adds that the guidance addresses circumstances under which the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule permits disclosure of PHI without an individual’s authorization. The guidance details that disclosures for purposes that are unrelated to healthcare—like disclosure to law enforcement—are allowed in only very narrow circumstances designed to protect the individual’s privacy and support their access to healthcare, including abortion care. In particular, the guidance reminds HIPAA covered entities and business that they can use and disclose PHI without an individual’s signed authorization only as expressly permitted or required by the privacy rule and clarifies the Privacy Rule’s limitations on disclosures of PHI when required by law, for law enforcement purposes, and to avoid a serious threat to health or safety.”
Bennet and Cortez Masto are advising HHS to begin the process of updating the Privacy Rule to clarify who is a covered entity, limit when that entity is able to share information on abortion or other reproductive health services, and clarify that reproductive health information cannot be shared with law enforcement agencies that target individuals who have an abortion. The senators are also urging HHS to determine that Crisis Pregnancy Centers are required to follow requirements of the Privacy Rule.
The letter from the senators concludes by saying that “The decision to start or expand a family is intensely personal and private. When patients speak with their providers about options for contraceptives, the progression of their pregnancy, or their choices to terminate a pregnancy, they expect those conversations to remain confidential. The individual liberty to make those decisions, and the conversations surrounding them, must be protected.”
