ANALYSIS: Dobbs Complicates Patient-Oriented Information Blocking Rule

The decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Org. permanently altered the patient-provider relationship. The day after the Dobbs decision, expect HHS to revise the information blocking final rule to better reflect the intersection between reproductive health, patient privacy, and access to a patient’s medical record. Indeed, as it exists in its current form, the rule may inadvertently facilitate the retrieval of patients’ reproductive health data without the patient’s consent or knowledge.

The free flow of protected health information

Congress passed the 21st Century Cures Act in 2016, and the Department of Health and Human Services implemented information blocking Final rule in 2020. The act and regulations were designed to improve patient health outcomes and promote interoperability, that is, the free flow of protected electronic health information between patients and their providers.

The regulation explains how actors and covered entities, including healthcare providers and health information networks, access and exchange personal electronic health information. Access to electronic PHI often occurs between health practices and providers from different entities, including health practices and health systems in different states of the country.

The Final Information Blocking Rule was designed to make access to and sharing of health information as transparent as possible. But after Dobbs, the free flow of electronic health information has new implications. Healthcare providers now fear that even counseling a patient about their reproductive options may be illegal, and patients are reluctant to share information with their providers. Doctors routinely ask questions about patients’ reproductive and sexual health, and seemingly innocuous information about a patient’s menstrual cycle could reveal pregnancy or abortion.

In states that have banned abortion, proof that a patient may have obtained an abortion — even if they did so in a different, more permissive state — may be considered probable cause for law enforcement. order to subpoena a patient’s electronic medical data.

Applying the interoperability rule, it is safe to assume that an abortion provider or clinic would have access to a patient’s entire medical record. If that provider is subpoenaed, that patient’s medical records (and possible history of a previous abortion) could be turned over in the course of a criminal investigation. Many states also require disclosure of abortion statistics, including the rationale for the procedure and whether informed consent was obtained.

Warranties fail

There are two exceptions to the final information blocking rule that allow covered entities to withhold patient information from authorities and other covered entities.

The first exception states that providers can stop disclosing patient health data if they do so to avoid harming a patient or another person. The second exception allows providers to block access to a patient’s electronic medical record to protect an individual’s privacy. It is important to note that compliance with the exceptions is not mandatory for covered entities, which means that the discretion to share protected electronic health information is in the hands of the provider.

There are also limiting circumstances where the second exception can be used:

  • if the patient does not provide express written consent;
  • if the actor is a health IT developer and not a supplier;
  • if the refusal is at the request of the patient; Where
  • if the denial complies with the HIPAA privacy rule.

Under the HIPAA privacy rule, a provider may release a patient’s medical information in response to a court order or subpoena. But a supplier to have to release a patient’s health information if it relates to a criminal investigation of child abuse or neglect. Therefore, in states with fetal personality laws (e.g., in Georgia), a pregnant patient could be criminally prosecuted for seeking an abortion because it would constitute child abuse, and the provider would be obligated to share the patient’s medical records if cited to appear.

It might be tempting for a provider to protect a patient by refraining from documenting a reproductive health procedure in the first place. But failing to document a procedure to prevent the disclosure of reproductive health information could actually compromise a patient’s health, lead to reimbursement and billing issues, and expose a provider to liability or arrest for having performed an illegal abortion. If the reason for the procedure is not recorded in the patient’s medical record, the provider cannot use the affirmative defense that the abortion was necessary to save the patient’s life.

What to expect

The Department of Health and Human Services may address the issue of interoperability in 2023, but its approach is unclear. HHS could modify the information blocking final rule to create another exception that specifically addresses these concerns. It could also issue guidance telling actors how to respond to a criminal subpoena related to reproductive health. Or, it could prevent Covered Entities from sharing an individual’s reproductive health information without their express consent.

The House of Representatives passed the Women’s Health Protection Act in July to address health privacy concerns raised by Dobbsbut he did not advance in the Senate, and it is unlikely that Congress will find a consensus on such a controversial subject as abortion.

Recognizing this shortcoming, Democratic senators recently sent a letter to HHS Secretary Alex Barrera encouraging HHS to update the HIPAA Privacy Rule and strengthen privacy protections for reproductive health information.

Until HHS issues guidance, medical professionals will wonder if their actions will result in license revocation or imprisonment. And patients are left with limited options as they try to seek needed care.

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