By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On April 12, 2023, the United States Department of Health and Human Services (HHS), through its Office for Civil Rights, proposed a rule to strengthen the protections under the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule. The proposed rule would prohibit using or disclosing protected health information (PHI) for any investigation or prosecution related to legal reproductive health care. In addition, HHS has considered feedback from patients, providers, and organizations to protect confidentiality and prevent private medical records from being misused. Read the press release from HHS to learn more.
Protecting Access to Lawful Reproductive Care.
The proposed law is one of many steps taken by HHS to ensure that individuals have access to reproductive care following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. However, the OCR has determined, per other federal agencies, that information related to reproductive health is highly sensitive and requires additional safeguards.
The measure introduces a new term, “reproductive healthcare,” a subcategory of healthcare. Reproductive healthcare includes but is not limited to, prenatal care, abortion, miscarriage management, infertility treatment, contraception use, and treatment for reproductive-related conditions such as ovarian cancer.
Additionally, the agency proposed a definition for Reproductive Health Information (RHI) and established certain protections. According to the OCR guidance, certain disclosures of RHI are prohibited when sought in criminal investigations or civil proceedings related to reproductive healthcare that is not allowed by state law. It also applies if federal law requires/protects such care regardless of which state provides it. View the guidance material released from the OCR.
Furthermore, the proposed prohibition applies to using and disclosing PHI for investigations or proceedings related to reproductive health care. To help covered entities determine whether a request is intended for such purposes, an attestation must be provided in certain circumstances when it is used for health oversight, judicial/administrative proceedings, law enforcement, or decedent information. A requester who knowingly falsifies an attestation (e.g., makes material misrepresentations as to the intended uses of the PHI) to obtain an individual’s information would violate HIPAA and could be subject to criminal penalties.
For more information, view the HIPAA Health Care Privacy Reproductive Fact Sheet.
The Proposed Rule may be viewed and downloaded in the Federal Register.
Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.
The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in investigating and defending alleged HIPAA complaints and violations, and in preparing corrective action plans (CAPs), and in preparing HIPAA risk assessments.
For more information about HIPAA violations, electronic health records, or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or toll-free: (888) 331-6620.
Sources:
Greene, Adam. Williams, Rebecca. “What To Know About Proposed HIPAA Privacy Rule Changes.” Law360. (May 2, 2023). Web.
Thomas, Ashley. “HHS Proposes HIPAA Changes to Protect Reproductive Health Information.” Holland & Knight. (April 14, 2023). Web.
HHS Press Office. “HHS Proposes Measures to Bolster Patient-Provider Confidentiality Around Reproductive Health Care.” Office for Civil Rights (OCR). (April 12, 2023). Web.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.
Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: [email protected] or fax them to (407) 331-3030.
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