OCR Proclaims Proposed Rulemaking to Strengthen Reproductive Well being Privateness

On April 12, 2023, OCR issued a (“NPRM”) to strengthen HIPAA’s protections round reproductive well being care privateness. The NPRM responds to President Biden’s Govt Order 14076, which directed HHS to think about methods to strengthen privateness protections for reproductive well being care companies, following the Supreme Court docket’s rule in Dobbs v. Jackson Ladies’s Well being Group, overturning Roe v. Wade and finally leading to renewed concern over affected person privateness and reproductive healthcare.

Below the NPRM, the use or disclosure of PHI could be prohibited for a legal, civil, or administrative investigation into, or continuing towards, any particular person looking for, acquiring, offering, or facilitating lawful reproductive well being care, within the following circumstances.

The prohibition would apply the place reproductive well being care is sought, obtained, supplied, or facilitated in a state the place well being care is lawful, and outdoors of the state the place an investigation or continuing is permitted, e.g., if a resident of 1 state traveled to a different state to obtain a authorized abortion. Moreover, it applies the place reproductive well being care is protected, required, or expressly licensed beneath federal regulation, corresponding to miscarriage administration required beneath EMTALA. Lastly, the prohibition would apply the place reproductive well being care is lawfully supplied within the state the place the investigation or continuing is permitted.

OCR clarified that the proposed rule would proceed to permit makes use of and disclosures of PHI permitted by HIPAA, with the caveat that the request for PHI will not be made to analyze or impose legal responsibility in reference to looking for, offering, or facilitating well being care. A regulated entity could be required to signal an attestation when receiving a request to reveal PHI for: well being oversight actions; judicial and administrative proceedings; regulation enforcement functions; and disclosures to coroners and medical experts.

The NPRM is a strong indicator of OCR’s intent to broadly prolong extra privateness protections for reproductive well being take care of all genders. HHS has outlined reproductive well being care to incorporate, however not be restricted, to therapy associated to prenatal care, abortion, miscarriage administration, infertility therapy, contraception use, and therapy for reproductive-related circumstances corresponding to ovarian most cancers. HHS inspired all stakeholders to submit public feedback on the NPRM. The actual fact sheet relating to the NPRM may be accessed .

When you have any questions on HIPAA or the NPRM, please contact a member of the Sheppard Mullin Healthcare Staff.

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