In President Joe Biden’s latest move to combat the U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade, the administration updated federal medical privacy laws to protect patients seeking abortions and providers administering the procedure. With the new rule in place, health plans and providers will be barred from disclosing health information about abortions to state officials. The change is particularly significant for those patients traveling out of state to obtain a legal abortion or those qualified for an exemption in a state with an abortion ban.
The rule, entitled “HIPAA Privacy Rule to Support Reproductive Health Care Privacy,” was announced Monday and it strengthens the Health Insurance Portability Act of 1996 (HIPAA) by prohibiting disclosure of health information related to lawful reproductive health care. The Biden administration promised the new rule will “bolster patient-provider confidentiality and help promote trust and open communication between individuals and their health care providers or health plans.”
HIPAA and its privacy rules are enforced by the federal Office of Civil Rights (OCR). When OCR published the proposed rule change in 2023, it received nearly 30,000 comments from the public.
The new rule prohibits the use or disclosure of private health information when that information is sought for investigative purposes or for the imposition of criminal, civil, or administrative liability on individuals who are seeking legal reproductive health care. It also requires health care providers and health plans to obtain a signed attestation that the information is not being used for those prohibited purposes before turning over private health information.
The change applies to health information related to “legal reproductive care” — which means that it does not prohibit the disclosure of abortion-related information in the context of an illegal abortion. Fourteen states currently have total bans on abortion.
The rule document released by the Biden administration noted that, “trust between individuals and health care providers is essential to an individual’s health and well-being,” and called protection of privacy “a crucial element for honest health discussions.”
“The original Hippocratic Oath required physicians to pledge to maintain the confidentiality of health information they learn about individuals,” the rule document continued. “Without confidence that private information will remain private, individuals — to their own detriment — are reluctant to share information with health care providers.”
When the rule was proposed in 2023, the attorneys general of Mississippi, Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas, and Utah officially opposed it in a letter to Health and Human Services Secretary Xavier Becerra. In the letter, the group accused the Biden administration of “push[ing] a false narrative that States are seeking to treat pregnant women as criminals or punish medical personnel who provide lifesaving care.” Rather, they said, the “widespread reality of state laws” excludes pregnant women from liability in the context of abortion.
“Rather than respect the decisions of some States to regulate abortion, the Biden Administration has instead sought to wrest control over abortion back from the people and their elected representatives,” argued the attorneys general. Further, they said that the rule intruded on “core state authority” in that it interfered with states’ ability to gather evidence on violations of state law.
Despite the opposition, the Biden administration adopted the updated privacy rule, which allows patients who believe their privacy rights to have been violated to file a complaint with the federal OCR.
“Many Americans are scared their private medical information will be being shared, misused, and disclosed without permission. This has a chilling effect on women visiting a doctor, picking up a prescription from a pharmacy, or taking other necessary actions to support their health,” said Becerra in a statement Monday. “The Biden-Harris Administration is providing stronger protections to people seeking lawful reproductive health care regardless of whether the care is in their home state or if they must cross state lines to get it. With reproductive health under attack by some lawmakers, these protections are more important than ever.”
“Since the fall of Roe v. Wade, providers have shared concerns that when patients travel to their clinics for lawful care, their patients’ records will be sought, including when the patient goes home. Patients and providers are scared, and it impedes their ability to get and to provide accurate information and access safe and legal health care,” said OCR Director Melanie Fontes Rainer. “Today’s rule prohibits the use of protected health information for seeking or providing lawful reproductive health care and helps maintain and improve patient-provider trust that will lead to improved health outcomes and protect patient privacy.”
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Author: Elura Nanos
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