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Post-Roe Health Privacy Guidelines Detailed by Biden HHS

June 29, 2022, 9:56 PM

Doctors and other health-care providers cannot disclose information about a patient’s pregnancy or abortion unless state laws or a court require them to do so, the HHS said Wednesday.

Doctors have expressed concerns about their obligation to disclose patient’s medical information under the Health Insurance Portability and Accountability Act following the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health. A handful of states have laws requiring disclosure to law enforcement of any injury that appears related to a criminal offense.

Health and Human Services Secretary Xavier Becerra told reporters Tuesday that the department doesn’t “want anyone’s private health information, for example, to be leaked in ways that violate federal law.”

Guidance released by the HHS Office for Civil Rights Wednesday outlined some scenarios doctors and hospitals may face in states that have banned abortions or are expected to do so.

For example, if a pregnant individual living in a state that bans abortions tells their provider of their intent to seek an abortion in a state where it is legal, giving that information to law enforcement would be an illegal disclosure under HIPAA because it “does not qualify as a ‘serious and imminent threat to the health or safety of a person or the public.’”

The OCR also put out guidance explaining that HIPAA privacy requirements don’t apply to personal cell phones or devicesunless the app is provided by a covered health-care entity.

“The best way to protect your health and personal information from being collected and shared by your personal cell phone or tablet without your knowledge is to limit what personal information you send and store on or through the device,” the guidance said. “If you are concerned about your cell phone or tablet tracking your location and activities, consider leaving the device at home.”

To contact the reporter on this story: Shira Stein in Washington at sstein@bloomberglaw.com

To contact the editor responsible for this story: Brent Bierman at bbierman@bloomberglaw.com