No ‘slam dunk fix’ in HIPAA privacy law to protect abortion patients

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Abortion advocates and Democratic lawmakers are calling on the Biden administration to guard knowledge on sufferers in search of abortion companies as considerations mount that clinic and hospital data might be used to prosecute people who search the process in states the place it’s unlawful.

One attainable motion includes the Well being Insurance coverage Portability and Accountability Act, an oft-cited but little-understood regulation that protects delicate medical data from being disclosed with no affected person’s consent or data.

However HIPAA doesn’t present the sweeping well being knowledge protections that many Individuals assume it does. And there’s little federal companies can do to strengthen the regulation with out assist from Congress, in line with a number of knowledge privateness and authorized consultants interviewed by Healthcare Dive. 

Any actions the HHS takes to make HIPAA stricter or forestall abortion-related knowledge from being shared with regulation enforcement are possible both unenforceable, topic to authorized challenges or will take too lengthy to assist sufferers within the near-term, consultants mentioned.

On this authorized atmosphere, suppliers — torn between considerations of authorized retribution and their responsibility to sufferers — ought to deal with minimizing and defending the information they gather, whereas retaining abreast of shifting abortion legality of their state.

“Sometimes the legal guidelines try to meet up with the place the actual world is, by way of what’s happening. This time we’ve the inverse of that state of affairs, the place the actual world is making an attempt to catch up or alter or modify to the regulation,” mentioned Bruce Armon, a well being regulation lawyer at Saul Ewing Arnstein & Lehr. “The very best factor for the supplier group is to concentrate to developments nearly each day.”

HIPAA’s regulation enforcement exception

Following the Supreme Courtroom’s landmark determination to overturn Roe v. Wade in June, dozens of states swiftly restricted entry to abortion care. The ruling kickstarted a nationwide dialog about privateness, as digital data like textual content messages, browser histories and emails have been used to prosecute pregnancy-related felony costs previously.

Medical knowledge saved by healthcare suppliers is also leveraged to prosecute sufferers and suppliers, regardless of being beneath HIPAA’s privateness umbrella.

”There’s many grey areas, gaps in it,” mentioned Ashley Thomas, senior counsel at Holland & Knight.

Underneath HIPAA, law enforcement is allowed to request affected person data from coated entities, and coated entities are permitted, however not required, to conform.

In keeping with latest steerage revealed by the HHS, if a state regulation prohibits abortion however doesn’t expressly require suppliers to report it, a supplier that experiences situations of the process is violating HIPAA.

However suppliers are allowed to report abortion knowledge in the event that they obtain a court docket order or summons. These may turn out to be extra frequent as conservative state attorneys common crack down on reproductive healthcare.

“There’s plenty of issues which might be grey right here and so they’re overlapping and intersecting and altering very quick,” mentioned Matthew Bernstein, founder of knowledge administration consultancy Bernstein Information.

Suppliers seeking to defend their sufferers from prosecution may determine not to reply to regulation enforcement requests as a coverage, except they arrive within the type of a warrant, mentioned Lucia Savage, chief privateness and regulatory officer at Omada Well being.

However subpoenas or court docket orders aren’t one thing suppliers can ignore with out opening themselves as much as a lawsuit, although sophisticated authorized nuances may come up for suppliers performing abortions on out-of-state sufferers. Absent federal safety for the process, some conservative states, together with Missouri, are eyeing methods to prosecute out-of-state suppliers in the event that they carry out abortions on sufferers from their state of residence.

“It sounds unconstitutional. However plenty of this sounds unconstitutional to me,” mentioned Dianne Bourque, a associate at Mintz specializing in healthcare regulation.

No ‘good clear slam dunk repair’

President Joe Biden signed an govt order in July calling on Federal Commerce Fee Chair Lina Khan and HHS Secretary Xavier Becerra to contemplate issuing new HIPAA steerage to guard in opposition to digital surveillance.

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