NCVHS Subcommittee on Privacy Comments on HIPAA Privacy Rule for Reproductive Health Care
NCVHS Subcommittee on Privacy, Confidentiality, and Security provided comments on the Notice of Proposed Rulemaking (NPRM) to modify the HIPAA Privacy Rule for reproductive health care privacy. The NPRM aims to address concerns post-Dobbs ruling, introducing new provisions for prohibited uses and disclosures related to lawful reproductive health care investigations. NCVHS highlights past relevant work on health privacy and confidentiality to support their recommendations.
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NCVHS Subcommittee on Privacy, Confidentiality and Security Comments on Notice of Proposed Rulemaking, HIPAA Privacy Rule To Support Reproductive Health Care Privacy June 14, 2023
Introduction On April 12, 2023, NPRM issued by HHS to modify the HIPAA Privacy Rule to strengthen reproductive health care privacy Primary Purpose of the NPRM: Modify the PrivacyRule under HIPAA and the HITECH Act to address concerns about reproductive health care privacy that have arisen after the Dobbs ruling HHS specifically invited NCVHS to comment and cites past work of the committee HITECH Act: Health Information Technology for Economic and Clinical Health Act of 2009 NCVHS: National Committee on Vital and Health Statistics NPRM: Notice of Proposed Rulemaking HIPAA: Health Insurance Portability and Accountability Act of 1996
Past Relevant Work of NCVHS February 20, 2008 June 22, 2006 Letter to the Secretary- Letter to the Secretary- Recommendations regarding Privacy and Confidentiality in the Nationwide Health Information Network November 10, 2010 June 27, 1997 From 2005 2010, NCVHS Letter to the Secretary- Recommendations on Health Privacy and Confidentiality Letter to the Secretary- Recommendations Regarding Sensitive Health Information Subcommittee on PCS held public hearings about the 2000 Privacy Rule. NCVHS held nine hearings re: sensitive health information Individual control of sensitive health information accessible via the NHIN for purposes of treatment NCVHS: National Committee on Vital and Health Statistics NHIN: Nationwide Health Information Network PCS: Privacy, Confidentiality and Security
Key Provisions Of NPRM New Category of Prohibited Uses and Disclosures for either: A criminal, civil, or administrative investigation against any person in seeking, obtaining, providing, or facilitating lawful reproductive health care. The identification of any person for the purpose of initiating such investigations or proceedings
Key Provisions Of NPRM Such disclosures of PHI would be prohibited when the reproductive health care is: provided outside of the state where the investigation is authorized and where such health care is lawfully provided authorized by federal law provided in the state where the investigation is authorized and is permitted by the law of that state
Key Provisions of NPRM Use or disclose PHI for purposes permitted under the Privacy Rule: professional misconduct or negligence involving reproductive health care defend any person in a criminal, civil, or administrative proceeding for providing reproductive health care conduct an audit for health oversight purposes
Key Provisions of NPRM Requires a signed attestation that the use or disclosure of PHI is not for a prohibited purpose for any of the following: Health oversight activities. Judicial and administrative proceedings. Law enforcement purposes. Disclosures to coroners and medical examiners. PHI: Protected Health Information
Other Key Provisions of NPRM Adding a Definition of Reproductive Health Care Define public health surveillance, investigation, or intervention Clarifying the definition of person Update Notice of Privacy Practices
Focus Areas for HHS Consideration Consider eliminating the current distinction between care that is lawful and care that is not Require attestations for all requests for PHI, rather than limiting to requests potentially related to reproductive health care Define reproductive health care in clear and specific terms if used in the requirement for attestations
Focus Areas for HHS Consideration The prohibition should include specific and clear definition of reproductive health care Use appropriate and clear terms when providing examples of reproductive health care Consider use of all available authorities
Focus Areas for HHS Consideration Clarify the new definition of public health Provide further clarification on de-identified data Attestation--recipient pledges not to redisclose to another party for any prohibited purposes
Focus Areas for HHS Consideration Update Notice of Privacy Practices Address other areas of Health Information Exchange: Telehealth Interoperability
