[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 459 Introduced in House (IH)]
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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 information
under the HIPAA privacy regulations and the HITECH Act.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Secure Access For Essential
Reproductive Health Act of 2023'' or the ``SAFER Health Act of 2023''.
SEC. 2. ENSURING THE PRIVACY OF PREGNANCY TERMINATION OR LOSS
INFORMATION UNDER THE HIPAA PRIVACY REGULATIONS AND THE
HITECH ACT.
(a) In General.--
(1) Prohibition on disclosure.--Subject to paragraph (2)
and nothwithstanding any provision in regulations promulgated
pursuant to section 264(c) of the Health Insurance Portability
and Accountability Act of 1996 (Public Law 104-191), a covered
entity or business associate of such entity may not disclose
pregnancy termination or loss information of an individual in
Federal, State, local, or tribal proceedings, including civil,
criminal, administrative, legislative, or other proceedings,
without the valid authorization of the individual made in
accordance with section 164.508 of title 45, Code of Federal
Regulations.
(2) Exceptions.--Paragraph (1) shall not apply in the case
of a disclosure of pregnancy termination or loss information of
an individual by a covered entity or business associate of a
covered entity if--
(A) such information is necessary for use in
defense of a professional liability action or
proceeding against the covered entity or business
associate and such information is disclosed by--
(i) the covered entity or business
associate to such covered entity's or business
associate's attorney or professional liability
insurer or insurer's agent; or
(ii) the authorized attorney of such
covered entity or business associate to a court
or body hearing such action or proceeding; or
(B) such information is necessary to--
(i) investigate physical harm to such
individual by another person directly relating
to the loss or termination of the pregnancy;
and
(ii) such individual is unable to provide
consent due to death or incapacity.
(b) HITECH.--
(1) Privacy exception.--The Secretary of Health and Human
Services shall revise section 171.202 of title 45, Code of
Federal Regulations, to clarify that an entity's practice of
not fulfilling a request to access, exchange, or use electronic
health information in order to comply with subsection (a) will
not be considered information blocking (as defined for purposes
of such section) if such information is pregnancy termination
or loss information.
(2) Greater security.--The Secretary of Health and Human
Services shall revise section 170.401 of title 45, Code of
Federal Regulations, to require that as a condition of
certification (as described in such section), a health IT
developer (as so described) shall implement practices that
allow for the segregation of data related to pregnancy
termination or loss information to ensure compliance with
subsection (a).
(c) Modification of State Preemption Exceptions.--
(1) In general.--The provisions of this section shall
preempt any State law to the extent such law conflicts with or
prevents application of this section. Nothing in the preceding
sentence shall be construed to preempt a State law to the
extent that such law provides greater privacy protections for
pregnancy termination or loss information than provided under
this section.
(2) Modification.--The Secretary of Health and Human
Services shall revise section 160.203 of title 45, Code of
Federal Regulations (or a successor regulation), to ensure that
no exception to the general preemption rule stated in such
section applies with respect to pregnancy termination or loss
information other than the exception under the second sentence
of paragraph (1).
(d) Outreach.--The Secretary of Health and Human Services shall
conduct an outreach campaign to covered entities and business
associates of such entities to ensure that such entities and associates
are aware of the requirements of this section and any changes to
regulations made pursuant to this section.
(e) Procedure.--Any revisions to regulations required by
application of this section shall be made by notice in the Federal
Register published not later than 3 months after the date of the
enactment of this section as an interim final rule. The Secretary of
Health and Human Services shall, after providing opportunity for public
comment, finalize any such interim final rule not later than 9 months
after such interim final rule is published with such modifications as
the Secretary determines appropriate.
(f) Definitions.--In this section:
(1) HIPAA terms.--The terms ``business associate'',
``covered entity'', and ``protected health information'' have
the meaning given such terms for purposes of the regulations
described in subsection (a)(1).
(2) Pregnancy termination or loss information.--The term
``pregnancy termination or loss information'' means protected
health information of an individual that relates to information
that could reveal having or seeking an abortion or care for
pregnancy loss, including without limitation, any request for
or receipt of items, services, education, counseling, or
referrals relating to the termination or loss of a pregnancy of
such individual, including abortion, miscarriage, stillbirth,
and ectopic pregnancy.
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