HHS Issues Proposed HIPAA Privacy Rule to Support Reproductive Health Care Privacy; Comments Due June 16
Published April 17, 2023
The U.S. Department of Health & Human Services (HHS) Office for Civil Rights (OCR) issued a Notice of Proposed Rulemaking to strengthen the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule protections by prohibiting the use or disclosure of protected health information (PHI) to investigate, or prosecute patients, providers, and others involved in the provision of legal reproductive health care, including abortion care.
This notice prohibits the use or disclosure of PHI by a regulated entity for either of the following purposes:
- A criminal, civil, or administrative investigation into or proceeding against any person in connection with seeking, obtaining, providing, or facilitating reproductive health care, where such health care is lawful under the circumstances in which it is provided.
- The identification of any person for the purpose of initiating such investigations or proceedings.
The prohibition would apply where the relevant criminal, civil, or administrative investigation or proceeding is in connection with one of the following:
- Reproductive health care that is sought, obtained, provided, or facilitated in a state where the health care is lawful and outside of the state where the investigation or proceeding is authorized.
- For example, if a resident of one state traveled to another state to receive reproductive health care, such as an abortion, that is lawful in the state where such health care was provided.
- Reproductive health care that is protected, required, or expressly authorized by federal law, regardless of the state in which such health care is provided.
- For example, if the reproductive health care, such as miscarriage management, is required under the Emergency Medical Treatment and Labor Act (EMTALA) to stabilize the health of the pregnant individual.
- Reproductive health care that is provided in the state where the investigation or proceeding is authorized and is permitted by the law of the state in which such health care is provided.
- For example, if a resident of a state receives reproductive health care, such as a pregnancy test or treatment for an ectopic pregnancy, in the state where they reside, and that reproductive health care is lawful in that state.
Comments are due June 16, 2023.