I
118THCONGRESS
1
STSESSION 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
JANUARY24, 2023
Ms. E
SHOO(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. 3
This Act may be cited as the ‘‘Secure Access For Es-4
sential Reproductive Health Act of 2023’’ or the ‘‘SAFER 5
Health Act of 2023’’. 6
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SEC. 2. ENSURING THE PRIVACY OF PREGNANCY TERMI-1
NATION OR LOSS INFORMATION UNDER THE 2
HIPAA PRIVACY REGULATIONS AND THE 3
HITECH ACT. 4
(a) I
NGENERAL.— 5
(1) P
ROHIBITION ON DISCLOSURE .—Subject to 6
paragraph (2) and nothwithstanding any provision 7
in regulations promulgated pursuant to section 8
264(c) of the Health Insurance Portability and Ac-9
countability Act of 1996 (Public Law 104–191), a 10
covered entity or business associate of such entity 11
may not disclose pregnancy termination or loss in-12
formation of an individual in Federal, State, local, 13
or tribal proceedings, including civil, criminal, ad-14
ministrative, legislative, or other proceedings, with-15
out the valid authorization of the individual made in 16
accordance with section 164.508 of title 45, Code of 17
Federal Regulations. 18
(2) E
XCEPTIONS.—Paragraph (1) shall not 19
apply in the case of a disclosure of pregnancy termi-20
nation or loss information of an individual by a cov-21
ered entity or business associate of a covered entity 22
if— 23
(A) such information is necessary for use 24
in defense of a professional liability action or 25
proceeding against the covered entity or busi-26
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ness associate and such information is disclosed 1
by— 2
(i) the covered entity or business asso-3
ciate to such covered entity’s or business 4
associate’s attorney or professional liability 5
insurer or insurer’s agent; or 6
(ii) the authorized attorney of such 7
covered entity or business associate to a 8
court or body hearing such action or pro-9
ceeding; or 10
(B) such information is necessary to— 11
(i) investigate physical harm to such 12
individual by another person directly relat-13
ing to the loss or termination of the preg-14
nancy; and 15
(ii) such individual is unable to pro-16
vide consent due to death or incapacity. 17
(b) HITECH.— 18
(1) P
RIVACY EXCEPTION.—The Secretary of 19
Health and Human Services shall revise section 20
171.202 of title 45, Code of Federal Regulations, to 21
clarify that an entity’s practice of not fulfilling a re-22
quest to access, exchange, or use electronic health 23
information in order to comply with subsection (a) 24
will not be considered information blocking (as de-25
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fined for purposes of such section) if such informa-1
tion is pregnancy termination or loss information. 2
(2) G
REATER SECURITY .—The Secretary of 3
Health and Human Services shall revise section 4
170.401 of title 45, Code of Federal Regulations, to 5
require that as a condition of certification (as de-6
scribed in such section), a health IT developer (as so 7
described) shall implement practices that allow for 8
the segregation of data related to pregnancy termi-9
nation or loss information to ensure compliance with 10
subsection (a). 11
(c) M
ODIFICATION OFSTATEPREEMPTIONEXCEP-12
TIONS.— 13
(1) I
N GENERAL.—The provisions of this sec-14
tion shall preempt any State law to the extent such 15
law conflicts with or prevents application of this sec-16
tion. Nothing in the preceding sentence shall be con-17
strued to preempt a State law to the extent that 18
such law provides greater privacy protections for 19
pregnancy termination or loss information than pro-20
vided under this section. 21
(2) M
ODIFICATION.—The Secretary of Health 22
and Human Services shall revise section 160.203 of 23
title 45, Code of Federal Regulations (or a successor 24
regulation), to ensure that no exception to the gen-25
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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). 4
(d) O
UTREACH.—The Secretary of Health and 5
Human Services shall conduct an outreach campaign to 6
covered entities and business associates of such entities 7
to ensure that such entities and associates are aware of 8
the requirements of this section and any changes to regu-9
lations made pursuant to this section. 10
(e) P
ROCEDURE.—Any revisions to regulations re-11
quired by application of this section shall be made by no-12
tice in the Federal Register published not later than 3 13
months after the date of the enactment of this section as 14
an interim final rule. The Secretary of Health and Human 15
Services shall, after providing opportunity for public com-16
ment, finalize any such interim final rule not later than 17
9 months after such interim final rule is published with 18
such modifications as the Secretary determines appro-19
priate. 20
(f) D
EFINITIONS.—In this section: 21
(1) HIPAA
TERMS.—The terms ‘‘business asso-22
ciate’’, ‘‘covered entity’’, and ‘‘protected health infor-23
mation’’ have the meaning given such terms for pur-24
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poses of the regulations described in subsection 1
(a)(1). 2
(2) P
REGNANCY TERMINATION OR LOSS INFOR -3
MATION.—The term ‘‘pregnancy termination or loss 4
information’’ means protected health information of 5
an individual that relates to information that could 6
reveal having or seeking an abortion or care for 7
pregnancy loss, including without limitation, any re-8
quest for or receipt of items, services, education, 9
counseling, or referrals relating to the termination 10
or loss of a pregnancy of such individual, including 11
abortion, miscarriage, stillbirth, and ectopic preg-12
nancy. 13
Æ
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