HIPAA disclosures of protected health information after Dobbs v. Jackson Women’s Health Organization: Foster Swift highlights Michigan navigation and federal law
After the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization reversed Roe vs. Wade on June 24, 2022, the Department of Health and Human Services (“HHS”) was tasked with responding to how the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) would affected. In particular, the HHS Office for Civil Rights has issued guidance on how the HIPAA Privacy Rule may or may not permit disclosure of an individual’s sexual and reproductive health information without the patient’s express permission.
Disclosures permitted under the HIPAA Privacy Rule for Sexual and Reproductive Health Care could be accessed without permission in three narrowly defined situations: (1) if the disclosure is expressly required by law; (2) if the disclosure is for a law enforcement purpose (such as a court order or warrant); and (3) whether the disclosure prevents a serious threat to health or safety.
In Michigan, the Medical Records Access Act allows authorized individuals, such as a physician or patients themselves, to request access to review or obtain patient medical records. It does not address the aforementioned circumstances where law enforcement may request protected health information from an individual without the patient’s consent.
However, as of May 17, 2022, a preliminary injunction has been in place that temporarily blocks a 1931 Michigan law that instituted a ban on abortion beforedeer. Governor Gretchen Whitmer has said during her governance that she intends to protect access to abortion in the state while she holds office, and there is a ballot initiative pending for November 2022 that could legalize abortion through Michigan’s state constitution if passed. The state’s temporary injunction ensures that abortion will not be criminalized in Michigan at this time, so a scenario where abortion-related medical records are expressly required by law or court-ordered will likely be rare. in the state.
Additionally, on July 13, 2022, Governor Whitmer signed an Executive Order that (1) refuses to remove or deport out-of-state individuals seeking access to reproductive health care in the State of Michigan; and (2) protects legal abortion providers in the state who fear lawsuits in other states for providing reproductive health care in Michigan.
For those outside of Michigan, knowing whether or not your state has criminalized abortion will be key in navigating health care legislation afterDobbs. States that already have “trigger bans” in place that will criminalize abortion within 30 days of the Supreme Court’s decision – if they haven’t already – include: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming.