HHS announces new rule that strengthens privacy protections for reproductive health care

Key takeaways:

• New rule will protect those seeking, obtaining, providing or facilitating lawful reproductive health care.
• The Biden-Harris administration said it will continue fighting to restore protections overturned by Dobbs.

The Biden-Harris administration, through the office for Civil Rights at the HHS, announced a final rule that strengthens privacy protections for lawful reproductive health care under HIPAA.

The HIPAA Privacy Rule to Support Reproductive Health Care Privacy strengthens the HIPAA Privacy Rule by prohibiting the disclosure of protected health information related to lawful reproductive health care in certain circumstances, according to an HHS press release.

HHS said it is issuing this final rule after hearing from communities that changes were needed to better protect patient confidentiality and prevent medical records from being used against people for providing or obtaining lawful reproductive health care. The final rule will bolster patient-provider confidentiality and help promote trust and communication between individuals and their health care providers or health plans, according to the release.

After the Dobbs decision, patients, providers, medical organizations and others have reported concerns about the ability to access reproductive health care and its impact on privacy, which may cause hesitation to interact with or seek care from health care organizations or providers, according to Melanie Fontes Rainer, director of the Office for Civil Rights at HHS.

“No one should have to live in fear that their conversations with their doctor or that their medical claims data might be used to target or track them for seeking lawful reproductive health care,” Fontes Rainer said during a press conference on April 22. “That’s why today the Office for Civil Rights issued a final rule to bolster patient privacy and trust, the HIPAA Privacy Rule, to support reproductive health care privacy.”

The final rule:

• prohibits the use or disclosure of a person’s protected health information when it is sought to investigate into or impose liability on individuals, health care providers and others who seek, obtain, provide or facilitate reproductive health care, including abortion, that is lawful under the circumstances in which such health care is provided, or to identify persons for such activities;
• requires a regulated health care provider, health plan, clearinghouse or their business associates to obtain a signed attestation that certain requests for protected health information potentially related to reproductive health care are not for prohibited purposes; and
• requires regulated health care providers, health plans and clearinghouses to modify their Notice of Privacy Practices to support reproductive health care privacy.

“Women’s health and lives are at risk and women are being forced to travel hundreds of miles for health care that would have been available in their state if Roe were still the law of the land. Doctors and nurses are being threatened with jail time for providing the care they were trained to provide, and the chaos and confusion from overturning Roe has disrupted access to fertility treatments for families who are desperately trying to get pregnant,” Jennifer Klein, assistant to the president and director of the White House Gender Policy Council, said during the press conference. “The president and vice president believe this should never happen in America. It’s why the Biden-Harris administration is fighting to restore the protections of Roe in federal law and why the president has directed his administration to protect access to a wide range of reproductive health care, including abortion, contraception and IVF.”

“When Dobbs overturned Roe v. Wade, it did more to damage to access to health care than I believe anything than we can think of in our lifetimes,” HHS Secretary Xavier Becerra.said during the press conference. “But there is one thing Dobbs didn’t take away and that is the right of Americans to their privacy, and we are here today to make that very clear,” Bacerra said. “Each and every American still has a right to their privacy, especially when it comes to their very private, very personal health information.”

The current HIPAA Privacy Rule is in effect until the new rule takes effect, according to the HHS release. Fontes Rainer said those who believe that their health information privacy rights have been violated should file a complaint at hhs.gov/OCR.

“Your personal health data should never be used against you, not by prosecutors, not by lawmakers, and not by private citizens who have been encouraged to enforce abortion bans. That is why this rule from the [Biden-Harris administration] to increase protections for patient privacy under HIPAA is critical,” Serina Floyd, MD, MSPH, FACOG, a board-certified OB/GYN and chief medical officer at Planned Parenthood, said during the press conference. “Everyone deserves access to the care they need free from fear that their health information will be compromised or use against them because abortion is health care.”