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HIPAA Disclosures of Protected Health Information after Dobbs v. Jackson Women’s Health Organization: Foster Swift Highlights Navigating Michigan and Federal Law | Foster Swift Collins & Smith

After the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization overturned Roe v. 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 be affected. Particularly, HHS’s Office for Civil Rights has released guidance regarding how the HIPAA Privacy Rule may or may not permit disclosure of an individual’s sexual and reproductive health information without express authorization from the patient.

Permitted disclosures under HIPAA’s Privacy Rule related to sexual and reproductive health care could be accessible without authorization in three narrowly tailored situations: (1) if the disclosure is expressly required by law; (2) if the disclosure is for law enforcement purposes (such as a court order or warrant); and (3) if 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 examine or obtain the patient’s medical records. It does not speak to the aforementioned circumstances where law enforcement may request an individual’s protected health information without the patient’s consent.

However, since May 17, 2022, there has been a preliminary injunction in place that temporarily blocks a 1931 Michigan statute that instituted a ban on abortion pre-Roe. Governor Gretchen Whitmer has stated during her governance that she intends to protect abortion access in the state while she occupies office, and there is a pending ballot initiative for November 2022 that may make abortion legal through Michigan’s state constitution if passed. The state’s temporary injunction ensures abortion will not be criminalized in Michigan for now, so a scenario where medical records related to abortion are expressly required by law or ordered by a court will likely be rare in the state.

Additionally, on July 13, 2022, Governor Whitmer signed an executive order that (1) refuses to remove or expel out-of-state persons seeking reproductive health care access to care in the state of Michigan; and (2) protects providers of legal abortion in the state who fear prosecution in other states for offering reproductive health care in Michigan.

For those not located in Michigan, awareness regarding whether your state has criminalized abortion or not will be key to navigating health care law post-Dobbs. The states that already have “trigger bans” in place that will criminalize abortion within 30 days of the Supreme Court’s decision – if not already – include: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.

At Foster Swift, we can help familiarize you with Michigan’s abortion laws and obtain an understanding of your rights as health care providers or individual patients related to medical information disclosures on these issues. Please contact any of the following attorneys by phone or via email to schedule a discussion or obtain our advice.

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