Friday, November 3, 2023
HomeHealth LawOCR Pronounces Proposed Rulemaking to Strengthen Reproductive Well being Privateness

OCR Pronounces Proposed Rulemaking to Strengthen Reproductive Well being Privateness


On April 12, 2023, OCR issued a Discover of Proposed Rulemaking (“NPRM”) to strengthen HIPAA’s protections round reproductive well being care privateness. The NPRM responds to President Biden’s Government Order 14076, which directed HHS to contemplate methods to strengthen privateness protections for reproductive well being care providers, following the Supreme Courtroom’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 can be prohibited for a felony, civil, or administrative investigation into, or continuing towards, any particular person in search of, 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, offered, or facilitated in a state the place well being care is lawful, and outdoors of the state the place an investigation or continuing is allowed, 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 underneath federal regulation, similar to miscarriage administration required underneath EMTALA. Lastly, the prohibition would apply the place reproductive well being care is lawfully offered within the state the place the investigation or continuing is allowed.

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 just isn’t made to analyze or impose legal responsibility in reference to in search of, offering, or facilitating well being care. A regulated entity can 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 health workers.

The NPRM is a sturdy indicator of OCR’s intent to broadly prolong further privateness protections for reproductive well being look after 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 situations similar to ovarian most cancers. HHS inspired all stakeholders to submit public feedback on the NPRM. The very fact sheet concerning the NPRM could be accessed right here.

In case you have any questions on HIPAA or the NPRM, please contact a member of the Sheppard Mullin Healthcare Crew.

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