The partisan letter, signed by dozens of Democrat congress members, made suggestions for three regulatory expansions

Ria Joseph
The Center Square

Three congress members from west coast states led fellow legislators in requesting that Americans’ protected health information, or PHI, be afforded the same federal privacy protections that emails and location data enjoy.

U.S. Senators Ron Wyden, D-Ore., and Patty Murray, D-Wash., and U.S. Representative Sara Jacobs, D-Calif., issued a letter to the Department of Health & Human Services (HHS) to go further to protect Americans’ constitutional rights and personal privacy, by expanding regulations in its proposed update of federal privacy regulations under the Health Insurance Portability and Accountability Act (HIPAA).

The joint July 18th letter to the Secretary of the Department of Health & Human Services, Xavier Becerra, stated, “On April 12, 2023, HHS issued a notice of proposed rulemaking to provide additional protections when law enforcement agencies demand Americans’ medical information from doctors and other healthcare providers…. HHS should significantly expand the protections in the HIPAA regulations so that all PHI is afforded the same protections as location data and the contents of phone calls, emails and text messages.”

The partisan letter, signed by dozens of Democrat congress members in both the Senate and House of Representatives, went on to make suggestions for three regulatory expansions.

Suggestions include: 

• Changing a provision of the HIPAA Privacy Rule to require a search warrant signed by a judge for release of a patient’s PHI which can currently be obtained with a subpoena, administrative request, or a court order. 
• A warrant secured for a PHI should be prohibited from sharing those records with other law enforcement agencies, except to further the particular investigation identified in the warrant application, and not for any other law enforcement action.
• HHS should require providers to proactively notify patients about law enforcement disclosures, either at the time of the disclosure, or on a delayed basis if prompt notice would disrupt an active investigation. 

“These changes are necessary in order to protect Americans from warrantless government surveillance,” the letter stated.

With the recent Supreme Court decision to let each state decide the issue of abortion, lawmakers are weary of Americans coming under scrutiny or even prosecution for breaking abortion bans, particularly in states with “trigger laws.” 

“There are countless categories of medical records — including those related to treatment for reproductive health, mental health conditions, cancer, dementia, neurodegenerative diseases, urology, and hospice care — that Americans hold as deeply private,” the lawmakers said in the letter to Becerra. “Americans should be able to trust that the information they share in confidence with their doctors when seeking care will receive the highest protections under the law, regardless of the specific medical issue.”

The congress members also expressed a belief that the HHS Office of Civil Rights (OCR) should have greater Congressional investment to ensure that it has the bandwidth “to process and respond to HIPAA data breaches..”

Medical providers face the greatest risk for prosecution, a report by NPR indicated.

“Although doctors cannot be forced to testify about their patients’ medical conditions in courts across the country, patient records containing the same information can be subpoenaed by law enforcement agencies, without showing probable cause of a crime and without oversight by an independent judge. The ability of law enforcement agencies to subpoena these records undermines patients’ legal protections, particularly in an era of digital health records, where every patient interaction is carefully documented. HHS should ensure that Americans’ PHI receive the greatest degree of protection under federal law,” the legislators opined.

This report was first published by The Center Square.