BOISE, Idaho — When Idaho’s abortion laws change later this summer, sensitive medical information will be at the center of the conversation. Idaho’s law will outlaw almost all abortions, creating a situation where there could be investigations into possible illegal abortions.
There are questions how that will look, investigating private medical information like the circumstances around an abortion can be sensitive and difficult. Some are asking if Idahoans can cite HIPAA protections to avoid investigations if they find themselves in that situation.
Linda wrote to us, "Does HIPAA provide any support for privacy against the new abortion laws, especially allowing family members to sue the provider?"
KTVB got insight from a Boise medical law expert.
Kim Stanger is the head of the health law group at Holland & Hart, he explained, The Health Insurance Portability and Accountability Act (HIPAA) of 1996, doesn’t apply to individuals. It covers healthcare providers, and how they need to protect patient health info.
“It does not apply directly to the patient, it only applies to health care providers who engage in certain electronic transactions and health plans, including employer benefit health plans. So, the patient can't necessarily hide behind HIPAA because it doesn't cover them, it doesn't apply to them,” Stanger said.
“That provider and the health plan and their business associates would be prevented from disclosing any protected health information unless they fit within the HIPAA exception. And there's different HIPAA exceptions that may or may not apply depending on the circumstances,” Stanger said.
So, as Stanger explains, HIPAA does prevent the release of medical records. But, HIPAA only goes so far, it is not an absolute block.
“Certainly, if the police or law enforcement or investigator, if they go to court and get a warrant or a subpoena, then HIPAA would allow the disclosure of compliance consistent with the court order or warrant. Although for subpoenas, there are some additional steps that the law enforcement would have to jump through before they could access the information,” Stanger said.
If there was a situation where a doctor was brought into court in a suspected case of illegal abortion and no subpoena has been made to access medical records, that doctor can only say so much. HIPAA protects patients if no exception has been made, like for a court order.
“Not only may they do it, but they would have to do it under HIPAA. It would prevent them from disclosing the information unless the exception applies. But it's not too hard to satisfy one of those HIPAA exceptions. If the law enforcement goes and gets a court order or a warrant that requires that physician to go ahead and make the disclosure,” Stanger said.
It’s important to note, HIPAA was not designed to be used as a way to dodge investigations, rather to protect information.
“It is to protect health information, but you have to balance that against the need of law enforcement to enforce crimes, to enforce the existing laws. And so, HIPAA tries to balance that by creating certain exceptions that would allow the law enforcement to access information without court involvement. But aside from those, it always leaves open the option for law enforcement to go get a court order or warrant, just like they would in any other criminal investigation,” Stanger said.
“When it comes to law enforcement, law enforcement officers can get around HIPAA either by getting a warrant or a court order or sitting in with one or the other exceptions. So they can't cite HIPAA just to ignore a court order or warrant,” Stanger said.
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