On April 12, 2023, OCR issued a Understand of Proposed Rulemaking (“NPRM”) to enhance HIPAA’s protections round reproductive well being care privateness. The NPRM responds to President Biden’s Government Order 14076, which directed HHS to imagine techniques to enhance privateness protections for reproductive well being care products and services, following the Ideally suited Courtroom’s rule in Dobbs v. Jackson Girls’s Well being Group, overturning Roe v. Wade and in the end leading to renewed fear over affected person privateness and reproductive healthcare.

Beneath the NPRM, the use or disclosure of PHI could be prohibited for a felony, civil, or administrative investigation into, or continuing in opposition to, any individual looking for, acquiring, offering, or facilitating lawful reproductive well being care, within the following instances.

The prohibition would observe the place reproductive well being care is sought, acquired, supplied, or facilitated in a state the place well being care is lawful, and out of doors of the state the place an investigation or continuing is allowed, e.g., if a resident of 1 state traveled to some other state to obtain a felony abortion. Moreover, it applies the place reproductive well being care is secure, required, or expressly approved underneath federal legislation, equivalent to miscarriage control required underneath EMTALA. In the end, the prohibition would observe the place reproductive well being care is lawfully supplied 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 accepted by way of HIPAA, with the caveat that the request for PHI isn’t 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 expose PHI for: well being oversight actions; judicial and administrative court cases; legislation enforcement functions; and disclosures to coroners and scientific examiners.

The NPRM is a strong indicator of OCR’s intent to widely prolong further privateness protections for reproductive well being maintain all genders. HHS has outlined reproductive well being care to incorporate, however no longer be restricted, to remedy associated with prenatal care, abortion, miscarriage control, infertility remedy, birth control use, and remedy for reproductive-related stipulations equivalent to ovarian most cancers. HHS inspired all stakeholders to publish public feedback at the NPRM. The reality sheet in regards to the NPRM will also be accessed right here.

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