HHS Proposes Actions to Protect Reproductive PHI

April 12, 2023
HHS, through its Office for Civil Rights, announced on April 12 that it has issued a Notice of Proposed Rulemaking to strengthen HIPAA Privacy Rule protections through banning the use and disclosure of reproductive healthcare PHI

According to an April 12 press release, the U.S. Department of Health & Human Services (HHS), through its Office for Civil Rights, announced it has issued a Notice of Proposed Rulemaking (NPRM) to strengthen Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule protections. The proposed measures include prohibiting the use or disclosure of protected health information (PHI) to investigate or prosecute individuals involved in the provision of legal reproductive healthcare, including abortion care.

The press release begins by explaining that HHS has heard from patients, providers, and organizations representing thousands of individuals that patient-provider confidentiality needs to be protected, as well as preventing medical records from being used against those seeking reproductive healthcare or those providing it.

Further, “Since the Supreme Court decision overturning Roe v. Wade, protecting patient health information and privacy has taken on critical importance. Following the decision, President Biden signed Executive Order 14076, directing HHS to consider ways to strengthen the protection of sensitive information related to reproductive healthcare services and bolster patient-provider confidentiality. Today’s announcement is consistent with that Executive Order and coincides with the third convening of President Biden’s Task Force on Reproductive Healthcare Access – a task force aimed at protecting women’s access to reproductive healthcare.”

OCR manages and enforces the Privacy Rule, sets requirements for the use, disclosure, and protection of PHI by HIPAA regulated entities—healthcare providers, health insurance companies, and other entities. The HIPAA Privacy Rule is meant to give confidence to individuals that their PHI, including information regarding reproductive healthcare, is being kept private.

“Today’s NPRM proposes to extend additional privacy protections for providers, insurers, patients and others to safeguard PHI when that information otherwise would be disclosed or used to identify, investigate, sue, or prosecute someone for seeking, obtaining, providing, or facilitating lawful reproductive healthcare,” the release adds. “Reproductive healthcare would be defined to include, but not be limited to, prenatal care, abortion, miscarriage management, infertility treatment, contraception use, and treatment for reproductive-related conditions such as ovarian cancer.”

HHS Secretary Xavier Becerra was quoted in the release saying that “When the Supreme Court overturned Roe v. Wade, nearly half a century of precedent changed overnight. The Biden-Harris Administration is committed to protecting women’s lawful access to reproductive healthcare, including abortion care. President Biden signed not one but two executive orders calling on HHS to take action to meet this moment and we have wasted no time in doing so. Today’s action is yet another important step HHS is taking to protect patients accessing critical care.”

The release says that the current Privacy Rule remains in effect—the rule permits, but does not require, certain disclosures to law enforcement and others, subject to specific conditions.

Complaints regarding your or another individual’s health information privacy or civil rights can be filed here.

The NPRM can be viewed here.

A fact sheet on the NPRM can be accessed here.  

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