Doctors are considering the legal risks of submitting ultrasounds and other personal health records if prosecutors and law enforcement request the information to enforce state abortion bans.
Important reasons: The new post-Roe landscape is testing the Health Insurance Portability and Accountability Act (HIPAA) suitability.
- A landmark federal privacy law restricts how health care providers can share medical information, but it doesn’t prevent it from being shared with law enforcement.
Catch up soon: In Texas, anti-abortion lawyers have started filing pre-litigation petitions to expel abortion providers for information about abortions, The Texas Tribune reported.
- Providers in these situations may require legal advice before processing requests for reproductive health information.
- “We’re in uncharted territory when it comes to these kinds of issues, so providers don’t really have guidance,” said deputy medical director of Planned Parenthood in South, East, and North Florida. One Samantha Deans said,
President Biden recently directed The Department of Health and Human Services has asked the government to consider measures to “strengthen the protection of confidential information related to reproductive health care services and to strengthen patient and provider confidentiality.”
- Supporters have called for Biden to strengthen federal laws governing how patient information is disclosed.
- An HHS spokesperson said, “We continue to evaluate effective options for helping people.
- Governments need to do whatever it takes to put patients at the center of care,” said Jill Gibson, medical director of Planned Parenthood in Arizona.
Further details: Providers generally require patient consent to disclose health information. However, there are some exceptions.
- If the request for patient information “is accompanied by a court order or grand jury subpoena, HIPAA permits the covered entity to disclose the minimum amount of information necessary to comply with the request,” it said. Partner Scott Weinstein said. At McDermott Will & Emery, a law firm that specializes in health privacy and security.
- The law does not require healthcare providers to surrender patient records, and they can refuse to do so.
State of play: Dianne Bourque, Mintz’s senior attorney who specializes in health law, said health care providers should educate themselves and their staff about how to handle requests for information because some providers may violate HIPAA regulations. said it was “important” to educate
- Requests for HIPAA records are typically made in writing using a form that specifies the information you are requesting. If the request is made informally by phone or in person without a form, the decision should be handed over to “someone who can assess its effectiveness,” Burke said.
- Patients have the right to know how many times their information has been disclosed.
Notable: Prosecutors and law enforcement have other avenues, even when denied by providers.
- HIPAA, enacted in 1996, did not anticipate the emergence of technology like period tracking apps.
- “It can give you enough information to confirm that someone’s period is late. Did she have an abortion?” said Lisa Ikemoto, a professor at the University of California, Davis School of Law.
- Some congressional action will likely be required to protect individuals’ digital footprints and to ensure that the technology industry is covered by the law’s privacy protections.
conspiracy: Federal law precedes state law. However, HIPAA is designed not to interfere with state public health efforts.
- That raises questions about how preemptive the law actually is and what regulatory changes HHS could make to the law. * Christopher Hart, attorney at Hogue LLP and member of the company’s reproductive health care team.
- A move by the Biden administration to toughen up HIPAA through rulemaking and make it more difficult for states to access information could face legal problems.
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