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Proposed Rule: HIPAA Privateness Rule To Help Reproductive Well being Care Privateness, 45 CFR Elements 160 and 164, 88 Fed. Reg. 23506 (Apr. 17, 2023); HIPAA Privateness Rule Discover of Proposed Rulemaking to Help Reproductive Well being Care Privateness Reality Sheet (Apr. 12, 2023)
In response to the U.S. Supreme Courtroom’s ruling in Dobbs v. Jackson Ladies’s Well being Group, which concluded that the Structure doesn’t prohibit states from regulating or banning abortion (see our Checkpoint article), HHS’s Workplace for Civil Rights (OCR) has proposed rules to switch the HIPAA privateness rule to ban sure makes use of and disclosures of details about reproductive well being care. OCR, which administers and enforces the privateness rule, units necessities for the use and disclosure of protected well being data (PHI) by lined entities and enterprise associates (collectively “regulated entities”). Following the Dobbs choice, OCR issued steering emphasizing that the prevailing privateness rule permits, however doesn’t require, sure disclosures to regulation enforcement and others, topic to particular circumstances (see our Checkpoint article).
The proposed rules would prohibit the use or disclosure of PHI by a regulated entity for a felony, civil, or administrative investigation into or continuing towards an individual in reference to looking for, acquiring, offering, or facilitating reproductive well being care, the place the well being care is lawful underneath the circumstances during which it’s supplied. The proposal would additionally prohibit the identification of any individual for the aim of initiating such investigations or proceedings. Reproductive well being care can be interpreted broadly to incorporate prenatal care, abortion, miscarriage administration, infertility therapy, contraception use, and therapy for reproductive-related circumstances equivalent to ovarian most cancers. To implement the prohibition, the proposed rules would require a regulated entity, when it receives a request for PHI doubtlessly associated to reproductive well being care, to acquire a signed attestation that the use or disclosure will not be for a prohibited goal. Whereas OCR is endeavor this rulemaking, the present privateness rule stays in place.
EBIA Remark: OCR has particularly requested feedback on whether or not the proposed prohibition on the use or disclosure of PHI associated to reproductive well being care that’s lawful underneath the circumstances during which it’s supplied would have an effect on the disclosure of PHI between well being care suppliers or between well being care suppliers and well being plans for therapy functions. A plan’s use and disclosure insurance policies have to be disclosed in its Discover of Privateness Practices; this might be an opportune time for well being plans to evaluate their Notices for accuracy and completeness. For extra data, see EBIA’s HIPAA Portability, Privateness & Safety handbook at Sections XXIII (“How the Privateness and Safety Guidelines Have an effect on Group Well being Plans and Plan Sponsors”) and XXVI (“Core Privateness Requirement #1: Use and Disclosure Guidelines”).
Contributing Editors: EBIA Employees.
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