In response to the United States Supreme Court decision in Dobbs vs. Jackson Women’s Health Organization, President Joe Biden signed an Executive Order on Friday, July 8, 2022, designed to protect access to reproductive health care services. In addition to measures seeking to safeguard access to abortion and contraception, the Executive Order includes provisions aimed at protecting the privacy of patients and their access to accurate information, which will likely build on guidance from the Secretary of Health and Human Services issued June 29, 2022, addressing related concerns.

When individuals think about the privacy and security of their health information moving through U.S. health care system, their first stop usually is the complex set of rules under “HIPAA” – referring to the Privacy, Security and related rules under the Health Insurance Portability and Accountability Act of 1996. For nearly 20 years, the HIPAA rules applicable to most healthcare providers and health plans have worked to safeguard “protected health information” or “PHI.” During that time, a debate has raged over the effectiveness of the rules; some arguing the rules are too stringent, others arguing they are not stringent enough, and still others believing HIPAA is just right.

Of course, the protection of medical information does not begin or end with HIPAA. There is a myriad of other federal, state, and local laws that potentially impact the privacy and security of individual identifiable medical information generated in connection with the provision and payment for reproductive health care services. Here, we address the Executive Order and recent OCR guidance. However, organizations must also consider these other laws when making decisions concerning the collection, use, disclosure, retention, and security of such information.

Executive Order.

With regard to protecting the privacy of patients and their access to accurate information, the Executive Order focuses on potential threats to patient privacy caused by (i) the transfer and sale of sensitive health-related data, and (ii) digital surveillance related to reproductive healthcare services. Related measures in the Order call for efforts to protect people seeking reproductive health services from fraudulent schemes or deceptive practices. To these ends, the Order directs:

  • the Secretary of Health and Human Services (HHS) to consider actions, including additional guidance under HIPAA, to strengthen the protection of sensitive information related to reproductive healthcare services and bolster patient-provider confidentiality. The Secretary also must work with the US Attorney General to consider actions designed to educate consumers on protecting privacy and limiting the collection and sharing of their sensitive health information.
  • the Chair of the Federal Trade Commission (FTC) to consider actions, including under the Federal Trade Commission Act, to protect consumers’ privacy when seeking information about and provision of reproductive healthcare services.
  • the Secretary to consult with the FTC Chair and Attorney General on ways to address deceptive and fraudulent practices related to reproductive healthcare services, including online, and to protect access to accurate information.

It remains to be seen what steps these agencies will take in response to the Executive Order. As noted above and summarized below, the Secretary has already issued guidance concerning patient privacy following Dobbs.

OCR Guidance Regarding Patient Privacy Following Dobbs.

Prior to the President’s Executive Order, the HHS Office for Civil Rights issued post-Dobbs guidance to help protect patients seeking reproductive care. The guidance comes in the form of reminders to providers and patients:

  • Reminder to providers about disclosures to third parties. In short, this guidance reminds HIPAA covered entities and business associates that they can use and disclose PHI, without an individual’s signed authorization, only as expressly permitted or required by the Privacy Rule. It reiterates some of the HIPAA Privacy Rule’s existing restrictions on disclosures of PHI (i) when required by law, (ii) for law enforcement purposes, and (iii) to avert a serious threat to health or safety. For example, the guidance makes clear that the HIPAA Privacy Rule permits but does not require covered entities to disclose PHI about an individual, without the individual’s authorization, when such disclosure is required by another law and the disclosure complies with the requirements of the other law. Further, the guidance reminds covered entities and business associates that the permission to disclose as “required by law” requires a mandate in the law that compels disclosure which is enforceable in court, explained through the following example:

An individual goes to a hospital emergency department while experiencing complications related to a miscarriage during the tenth week of pregnancy. A hospital workforce member suspects the individual of having taken medication to end their pregnancy. State or other law prohibits abortion after six weeks of pregnancy but does not require the hospital to report individuals to law enforcement. Where state law does not expressly require such reporting, the Privacy Rule would not permit a disclosure to law enforcement under the “required by law” permission. Therefore, such a disclosure would be impermissible and constitute a breach of unsecured PHI requiring notification to HHS and the individual affected. (emphasis added)

The guidance includes a similar analysis when considering law enforcement requests made through legal processes such as court orders or subpoenas.

  • Reminders to patients to protect medical information when using period trackers and other health information apps. In general, PHI accessed or stored on individuals’ personal devices is not protected under the HIPAA rules. The OCR cites recent reports about patients expressing concerns that period trackers and other health information apps threaten privacy by disclosing geolocation data which may be misused by those seeking to deny care.

To help address these concerns, the guidance provides steps to limit how certain devices collect and share health and other personal information without the knowledge of the device’s owner. This includes instructions for turning off location services and best practices for selecting apps, browsers, and search engines. It also provides a list of several resources for protecting privacy when using apps and other electronic products, including from the FTC and Consumer Reports.

 

What all this means for healthcare providers, health plans, and business associates is heightened attention when handling individual identifiable health information related to reproductive health care services, including when it is permissible to disclose HIPAA protected health information, particularly without the authorization of the individual to whom it relates. Such organizations also will need to consider more stringent state law that may provide stronger protections for privacy, while health plans covered by the Employee Retirement Income Security Act will have to assess whether state laws might be preempted by ERISA. These are not easy tasks in a world with growing privacy protections, data breaches, labor shortages, and rapidly advancing technologies.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.

Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Jason represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. He regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Jason regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Jason is the co-leader of Jackson Lewis’ Hispanic Attorney resource group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. He also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.