In response to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, U.S. Department of Health and Human Services (“HHS”) Secretary Xavier Becerra ordered HHS agencies to act to the best of their ability to protect the rights of patients seeking reproductive and reproductive health care. their providers. Some of the major HHS agencies issued in response to Secretary Becerra’s directive include:
- HHS, the U.S. Department of Labor, and the Department of Treasury (the “Departments”) have reminded sponsors and issuers of group health plans that the Public Health Service (“PHS”) Act (which also amended Employees Retirement Income Security Act of 1974 and the Internal Revenue Code) require non-grandfathered group health plans and health insurers offering non-grandfathered group or individual health insurance coverage to provide coverage non-cost-sharing contraceptive as preventive care. The PHS Act requires plans and issuers to cover, without cost sharing, at least one form of contraception in each category of contraceptives as well as contraceptive services or contraceptive products approved, authorized, or granted by the FDA that a person and its treating provider have determined to be medically appropriate. This mandate includes emergency contraception such as levonorgestrel (Plan B) and ulipristal acetate (Ella). The departments referenced reports of non-compliance and urged non-grandfathered group health plans and health insurers to immediately ensure they comply with these rules.
- The HHS Office of Civil Rights (“OCR”) has issued guidance clarifying when the Health Insurance Portability and Accountability Act’s Privacy Rule permits, but does not require, disclosure. protected health information to third parties, such as law enforcement.
- The OCR has also released guidelines that advise individuals on the extent to which their private health information is protected when using personal cell phones and tablets. It also provides guidance on how individuals can protect this information when using health information applications.
- The HHS Centers for Medicare and Medicaid Services (“CMS”) issued a memorandum to directors of state investigative agencies urging them to ensure that hospitals meet their existing obligations under the Medical Treatment Act. Emergency and Labor (“EMTALA”). EMTALA requires hospitals with dedicated emergency departments to provide a medical screening exam to anyone who presents to the emergency department and requests one. It also requires that the hospital provide stabilizing treatment or an appropriate transfer to another hospital that can provide stabilizing treatment in cases where the screening examination reveals that an emergency medical condition exists. EMTALA defines emergency medical conditions for pregnant women as including ectopic pregnancy, complications of pregnancy loss, or emerging hypertensive disorders such as preeclampsia. CMS has made it clear that EMTALA prevails over any state law prohibiting abortion when it comes to necessary stabilization treatment for a woman who suffers from an emergency medical condition.
These guidelines do not necessarily cover new areas. However, it serves to remind those subject to these requirements that they may wish to confirm compliance to ensure that access to reproductive and contraceptive care after Dobbs remains in place where required by law.
