HHS announces a new rule to strengthen privacy protections related to women's reproductive health care; the rule prohibits the disclosure of protected health information related to lawful reproductive health care in certain circumstances

The Final Rule strengthens privacy protections for medical records and health information for women, their family members, and doctors who are seeking, obtaining, providing, or facilitating lawful reproductive health care.

Today, the Biden-Harris Administration, through the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) announced a Final Rule, entitled HIPAA Privacy Rule to Support Reproductive Health Care Privacy. The Final Rule strengthens the Health Insurance Portability Act of 1996 (HIPAA) Privacy Rule by prohibiting the disclosure of protected health information (PHI) related to lawful reproductive health care in certain circumstances. HHS is issuing this Final Rule after hearing from communities that changes were needed to better protect patient confidentiality and prevent medical records from being used against people for providing or obtaining lawful reproductive health care. This Final Rule will bolster patient-provider confidentiality and help promote trust and open communication between individuals and their health care providers or health plans, which is essential for high-quality health care.

“Many Americans are scared their private medical information will be being shared, misused, and disclosed without permission. This has a chilling effect on women visiting a doctor, picking up a prescription from a pharmacy, or taking other necessary actions to support their health,” said HHS Secretary Xavier Becerra. “The Biden-Harris Administration is providing stronger protections to people seeking lawful reproductive health care regardless of whether the care is in their home state or if they must cross state lines to get it. With reproductive health under attack by some lawmakers, these protections are more important than ever.”

“Since the fall of Roe v. Wade, providers have shared concerns that when patients travel to their clinics for lawful care, their patients’ records will be sought, including when the patient goes home. Patients and providers are scared, and it impedes their ability to get and to provide accurate information and access safe and legal health care,” said OCR Director Melanie Fontes Rainer. “Today’s rule prohibits the use of protected health information for seeking or providing lawful reproductive health care and helps maintain and improve patient-provider trust that will lead to improved health outcomes and protect patient privacy.”

OCR administers and enforces the Privacy Rule, which requires most health care providers, health plans, health care clearinghouses, and business associates (collectively, “regulated entities”) to safeguard the privacy of PHI and sets limits and conditions on the uses and disclosures of such information. The HIPAA Privacy Rule also gives individuals certain rights over their PHI. In April 2023, OCR published proposed modifications to the HIPAA Privacy Rule to address changes in the legal landscape affecting reproductive health care privacy that make it more likely than before that PHI may be used and disclosed in ways that HIPAA intended to protect. OCR received almost 30,000 comments on the proposed rule from the public. After carefully considering these comments, the Department is issuing a Final Rule that:

• Prohibits the use or disclosure of PHI when it is sought to investigate or impose liability on individuals, health care providers, or others who seek, obtain, provide, or facilitate reproductive health care that is lawful under the circumstances in which such health care is provided, or to identify persons for such activities.
• Requires a regulated health care provider, health plan, clearinghouse, or their business associates, to obtain a signed attestation that certain requests for PHI potentially related to reproductive health care are not for these prohibited purposes.
• Requires regulated health care providers, health plans, and clearinghouses to modify their Notice of Privacy Practices to support reproductive health care privacy.

The Final Rule may be viewed here - PDF.