HHS issues new guidance on post-Roe v. Wade patient privacy

The guidance “addresses the circumstances under which the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule permits disclosure of [protected health information] without an individual’s authorization,” the agency said in a news release. According to the guidance, providers may share protected health information with law enforcement and without a patient’s consent “in narrow circumstances.”

The HIPAA Privacy Rule allows disclosure of protected health information when expressly required by another law, when the request is made “through such legal processes as a court order or court-ordered warrant” and if the disclosure is necessary to prevent a threat to health or safety, the guidance said.

The new guidance on privacy provided examples of situations in which providers may question their responsibility regarding protected health information, including if a provider suspects a patient has induced an abortion, if patient information is requested by law enforcement and if a patient tells a provider they plan to seek an abortion elsewhere.

“Many patients,” the agency said, were concerned that data stored in personal devices and linked to things like period-tracking apps could be used against them. The new guidance holds that generally, HIPAA does not protect data like this, and it provides suggestions on how that data can be protected on an individual level.
HHS Secretary Xavier Becerra on Tuesday pledged to protect access to reproductive health care, including considering steps to increase access to medication abortion.
Becerra said in a news conference that the department would strive to increase access to medication abortion across the country and work with the Office for Civil Rights to protect patient and provider privacy. He also said the Centers for Medicare and Medicaid Services would “take every legally available step” to protect access to family planning care.

“There is no magic bullet, but if there is something we can do we will find it and we will do it at HHS,” Becerra said. “Indeed, that was the instruction I received from the President of the United States.”

Calling the Supreme Court’s decision “despicable,” the secretary said it “unconscionably put at risk the life and health of millions of our fellow Americans.”

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