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Regardless of your personal and moral views concerning reproductive health, recent and potential upcoming changes to regulations regarding notes and release of information may impact your practice. While there are many aspects of reproductive health, the main components considered in this article include
What are the Concerns?
The issue of highest concern to both medical and mental health providers is the possibility that prosecutors from states that prohibit abortion may go after women who have traveled out of state to obtain services. Some legal scholars voice concerns that efforts initiated by Attorney Generals in 19 states are an attempt to gain full access to health care records and warn against the possibility of further, more restrictive actions.
In response to these concerns, the department of Health and Human Services (HHS) under the Biden/Harris administration released updates to HIPAA – and issued the Final Rule in April 2024. Among other changes, the Final Rule generally prohibits disclosure or use of PHI for purposes of criminal, civil, or administrative investigations against persons seeking, obtaining, providing, or facilitating reproductive health care under lawful circumstances. Both California and Connecticut have enacted similar legislation.
Why all The Fuss?
None of these efforts to protect medical records affect providers, and their notes, in states where abortion is either restricted or illegal. For providers working with clients in those jurisdictions, as noted below, state laws under consideration, may necessitate consideration of certain actions.
Additionally, Attorney Generals from 19 states objected to the HIPAA rule and a lawsuit filed by the Texas Attorney General challenging this rule is pending. A decision is expected in early 2025. If the challenge is successful, it may pave the possibility of prosecutors gaining access to medical records currently protected.
To date, no criminal actions have been pursued. Hence, there is no case law to guide clinicians into what steps they need to take to remain in compliance.
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Are there other concerns professionals should be aware of?
Among two of more significant unanswered questions that require meticulous attention if you work with clients that reside in a state that has either banned or restricted access to abortion
Where does this leave you?
In addition to one’s own moral considerations several legal and ethical implications should be noted, regardless of what state(s) you practice in. A higher level of attention is warranted if you practice in a state that restricts access to abortion and/or are aware of someone who either has, or intends to, travel out of state to receive services.
Unanswered questions for consideration
At this time, no law specifies that mental health providers have a duty to warn. However, duty to warn is a state, and not a federal mandate. There is the potential that certain states may enact legislation to this effect, and it is essential to follow the laws of every state in which you practice.
Steps you can take to protect yourself and your clients/patients
In addition to the above, remaining up to date to changes in state laws and guidance from your professional associations will help you make the most informed decisions.
If in doubt, always, always seek legal consultation.
To learn more, this topic will be covered in depth in our upcoming Ethics webinar.