[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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