Dive Brief:

• Healthcare providers are not permitted to disclose patient health information unless faced with a court order, the HHS said Wednesday in an attempt to provide clarity following the overturning of Roe v. Wade.  
• In the absence of a court order, federal privacy rules about sharing health information — like whether a person obtained an abortion — is not a permitted disclosure, the HHS guidance says. 
• The department also warned patients that data collected by third-party apps, such as period trackers, is not protected health information under federal rules and could be shared with other entities.        

Dive Insight:

The HHS Office for Civil Rights issued privacy guidelines Wednesday to provide clarity on how to protect patient health information following the Supreme Court’s ruling that ends the constitutional right to abortion. 

The guidance comes as providers and patients have expressed concerns about privacy and the release of patient health information that is protected under the Health Insurance Portability and Accountability Act, commonly referred to as HIPAA.

The HHS explained that disclosures without patient authorization “are permitted only in narrow circumstances.”

The health agency laid out examples for providers on when they may be compelled to turn over patient information. 

If a person shows up to an emergency room with complications from a miscarriage at 10-weeks pregnant and a hospital worker suspects the person induced the miscarriage with a medication abortion, providers would not be forced to notify law enforcement if the state bans abortion after six weeks. 

However, HHS seemed to indicate that providers may be forced to share that information in states that may require such reporting. 

“Where state law does not expressly require such reporting, the Privacy Rule would not permit a disclosure to law enforcement,” HHS said. 

In another example, HHS said that providers are not permitted to disclose information if law enforcement shows up at a clinic requesting abortion records.

However, if a law enforcement officer had a court order, clinics may disclose only the information requested in the order. The federal privacy rule would permit this disclosure but does not require it, HHS said.

The guidance follows the Supreme Court ruling last week that struck down the constitutional right to an abortion, ending nearly 50 years of protected access to the procedure in the U.S. 

The end of Roe has already caused confusion at some large health systems as they grapple with the new legal landscape now that federal protection has been peeled back and the regulation of abortion is up to each individual state.