What This Bill Does
This bill protects privacy of information about pregnancy loss or termination by preventing healthcare providers and their business partners from sharing this medical information in court cases and legal proceedings without a patient's permission. The bill also requires the government to update its rules about electronic health information and how it is shared.
Who It Affects
Healthcare providers (called "covered entities"), their business partners, the Department of Health and Human Services, health information technology developers, and patients seeking care related to pregnancy loss or termination.
Key Provisions
• Healthcare providers and their business partners cannot share pregnancy termination or loss information in any federal, state, local or tribal court case or legal proceeding without written permission from the patient, with limited exceptions (Sec. 2(a)(1))
• Healthcare providers can share this information only if needed to defend themselves against a lawsuit about their medical care, and only with their lawyer or insurance company, or if investigating physical harm to the patient when the patient cannot consent due to death or incapacity (Sec. 2(a)(2))
• The government must update its rules so that healthcare providers refusing to share pregnancy information electronically to follow this law will not be penalized for "information blocking" (restricting access to health data) (Sec. 2(b)(1))
• Health information technology companies must build systems that separate pregnancy termination or loss data from other patient information to protect it (Sec. 2(b)(2))
• This law overrides any state law that conflicts with it, unless a state law provides even stronger privacy protections (Sec. 2(c)(1))
What Changes
Healthcare providers can no longer turn over pregnancy loss or termination information to courts, prosecutors or government agencies without explicit patient permission. Electronic health record systems must have the technical ability to keep this information separate. The government will launch an education campaign to inform healthcare providers about these new rules.
Important Definitions
"Pregnancy termination or loss information" means any medical records that could reveal someone had an abortion or received care for pregnancy loss, including information about requests for or receipt of services like abortion care, miscarriage treatment, stillbirth care, and ectopic pregnancy care.
I
118TH CONGRESS
1ST SESSION
H. R. 459
To ensure the privacy of pregnancy termination or loss information under
the HIPAA privacy regulations and the HITECH Act.
IN THE HOUSE OF REPRESENTATIVES
JANUARY 24, 2023
Ms. ESHOO (for herself and Ms. JACOBS) introduced the following bill; which
was referred to the Committee on Energy and Commerce
A BILL
To ensure the privacy of pregnancy termination or loss infor-
mation under the HIPAA privacy regulations and the
HITECH Act.
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
2
SECTION 1. SHORT TITLE.
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This Act may be cited as the ‘‘Secure Access For Es-
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sential Reproductive Health Act of 2023’’ or the ‘‘SAFER
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Health Act of 2023’’.
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•HR 459 IH
SEC. 2. ENSURING THE PRIVACY OF PREGNANCY TERMI-
1
NATION OR LOSS INFORMATION UNDER THE
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HIPAA
PRIVACY
REGULATIONS
AND
THE
3
HITECH ACT.
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(a) IN GENERAL.—
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(1) PROHIBITION ON DISCLOSURE.—Subject to
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paragraph (2) and nothwithstanding any provision
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in regulations promulgated pursuant to section
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264(c) of the Health Insurance Portability and Ac-
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countability Act of 1996 (Public Law 104–191), a
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covered entity or business associate of such entity
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may not disclose pregnancy termination or loss in-
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formation of an individual in Federal, State, local,
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or tribal proceedings, including civil, criminal, ad-
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ministrative, legislative, or other proceedings, with-
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out the valid authorization of the individual made in
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accordance with section 164.508 of title 45, Code of
17
Federal Regulations.
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(2) EXCEPTIONS.—Paragraph (1) shall not
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apply in the case of a disclosure of pregnancy termi-
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nation or loss information of an individual by a cov-
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ered entity or business associate of a covered entity
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if—
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(A) such information is necessary for use
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in defense of a professional liability action or
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proceeding against the covered entity or busi-
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•HR 459 IH
ness associate and such information is disclosed
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by—
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(i) the covered entity or business asso-
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ciate to such covered entity’s or business
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associate’s attorney or professional liability
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insurer or insurer’s agent; or
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(ii) the authorized attorney of such
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covered entity or business associate to a
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court or body hearing such action or pro-
9
ceeding; or
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(B) such information is necessary to—
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(i) investigate physical harm to such
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individual by another person directly relat-
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ing to the loss or termination of the preg-
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nancy; and
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(ii) such individual is unable to pro-
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vide consent due to death or incapacity.
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(b) HITECH.—
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(1) PRIVACY
EXCEPTION.—The Secretary of
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Health and Human Services shall revise section
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171.202 of title 45, Code of Federal Regulations, to
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clarify that an entity’s practice of not fulfilling a re-
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quest to access, exchange, or use electronic health
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information in order to comply with subsection (a)
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will not be considered information blocking (as de-
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•HR 459 IH
fined for purposes of such section) if such informa-
1
tion is pregnancy termination or loss information.
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(2) GREATER
SECURITY.—The Secretary of
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Health and Human Services shall revise section
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170.401 of title 45, Code of Federal Regulations, to
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require that as a condition of certification (as de-
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scribed in such section), a health IT developer (as so
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described) shall implement practices that allow for
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the segregation of data related to pregnancy termi-
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nation or loss information to ensure compliance with
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subsection (a).
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(c) MODIFICATION OF STATE PREEMPTION EXCEP-
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TIONS.—
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(1) IN GENERAL.—The provisions of this sec-
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tion shall preempt any State law to the extent such
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law conflicts with or prevents application of this sec-
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tion. Nothing in the preceding sentence shall be con-
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strued to preempt a State law to the extent that
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such law provides greater privacy protections for
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pregnancy termination or loss information than pro-
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vided under this section.
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(2) MODIFICATION.—The Secretary of Health
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and Human Services shall revise section 160.203 of
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title 45, Code of Federal Regulations (or a successor
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regulation), to ensure that no exception to the gen-
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•HR 459 IH
eral preemption rule stated in such section applies
1
with respect to pregnancy termination or loss infor-
2
mation other than the exception under the second
3
sentence of paragraph (1).
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(d) OUTREACH.—The Secretary of Health and
5
Human Services shall conduct an outreach campaign to
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covered entities and business associates of such entities
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to ensure that such entities and associates are aware of
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the requirements of this section and any changes to regu-
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lations made pursuant to this section.
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(e) PROCEDURE.—Any revisions to regulations re-
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quired by application of this section shall be made by no-
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tice in the Federal Register published not later than 3
13
months after the date of the enactment of this section as
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an interim final rule. The Secretary of Health and Human
15
Services shall, after providing opportunity for public com-
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ment, finalize any such interim final rule not later than
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9 months after such interim final rule is published with
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such modifications as the Secretary determines appro-
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priate.
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(f) DEFINITIONS.—In this section:
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(1) HIPAA TERMS.—The terms ‘‘business asso-
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ciate’’, ‘‘covered entity’’, and ‘‘protected health infor-
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mation’’ have the meaning given such terms for pur-
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•HR 459 IH
poses of the regulations described in subsection
1
(a)(1).
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(2) PREGNANCY TERMINATION OR LOSS INFOR-
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MATION.—The term ‘‘pregnancy termination or loss
4
information’’ means protected health information of
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an individual that relates to information that could
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reveal having or seeking an abortion or care for
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pregnancy loss, including without limitation, any re-
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quest for or receipt of items, services, education,
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counseling, or referrals relating to the termination
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or loss of a pregnancy of such individual, including
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abortion, miscarriage, stillbirth, and ectopic preg-
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nancy.
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Æ
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