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The Department of Health and Human Services' Office for Civil Rights issued a Notice of Proposed Rulemaking last week to amend the Health Insurance Portability and Accountability Act (HIPAA). The goal of the update is to improve privacy in reproductive health care. These proposed changes are the Department's response to President Biden's Executive Orders issued in the aftermath of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization.
Since the 2022 decision, which overturned Roe v. Wade and eliminated the federal right to abortion, US states have been clamoring to pass abortion legislation. There is worry that those states will try to prosecute residents who travel out of state to obtain abortions and will request PHI (protected health information) from healthcare providers who offer reproductive health services or facilitate access to such services.
Under the current HIPAA Privacy Rule, certain disclosures to law enforcement and others are permitted but not required. The proposed changes would require a signed declaration confirming that the request for PHI is not for a prohibited use in the case of a request for PHI related to reproductive care.
The proposed update to the HIPAA Privacy Rule would expressly prohibit using a person's reproductive health information to bring legal action against them in connection with searching for, receiving, facilitating, or supplying reproductive health care. Additionally, the use of reproductive PHI to identify a person for the purpose of launching such investigations or legal actions would also be prohibited.
