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President Biden Issues Executive Order on Access to Reproductive Health Care; HHS Follows with Clarifying Guidance

In the wake of the Supreme Court’s decision in the Dobbs case, President Biden issued an executive order*(Order) intended to protect access to reproductive health care services.

The Order:

  • Safeguards access to reproductive health care services, including abortion and contraception;
  • Protects patient privacy and patient access to accurate information;
  • Promotes safety and security of patients, providers, and clinics; and
  • Coordinates implementation of federal efforts to protect reproductive rights and access to health care

Among other steps, the Order asks the Department of Health and Human Services (HHS) to see what actions can be taken to protect sensitive information related to reproductive health care. In response, HHS Secretary Becerra instructed the HHS Office of Civil Rights to publish guidance stating that, in many cases, the HIPAA privacy rule does not allow doctors and medical providers to disclose private patient information to law enforcement. HHS is also expected to provide a consumer guide on how to protect personal data on mobile applications.

Although the Dobbs decision determined that anything having to do with the legalization of abortion, and its corresponding rights and services, would revert to state law, the Order instructs HHS to take actions to protect and expand access to abortion care. One step HHS has already taken is announcing guidance on the Emergency Medical Treatment and Active Labor Act (EMTALA), which applies to health providers and protects providers that offer legally mandated, life or health-saving abortion services in emergency situations. EMTALA requires that Medicare hospitals give “all patients an appropriate medical screening, examination, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures.”

In a letter to health care providers, Secretary Becerra stated that EMTALA preempts any state law that would restrict abortion access in an emergency. Therefore, according to the letter, if a state prohibits abortion, and does not include exceptions for health or life, the state law is preempted by EMTALA. Texas has already filed a legal challenge against the conclusions in the letter, arguing that federal law does not give a right to an abortion.

This new guidance comes on the heels of a separate letter sent by the HHS, DOL, and IRS reminding health insurers of their obligations under the contraceptive care mandate of the ACA. Plans and carriers must cover without cost sharing at least one form of contraception in each contraceptive category. The plan must also cover all contraceptive services or FDA-approved contraceptive products an individual and their medical provider have determined to be medically appropriate.

Next Steps

As expected, Dobbs continues to change the legal landscape on abortion. As federal guidance continues to be issued and state law continues to change via state legislatures and courts, employers are encouraged to keep in contact with trusted advisors to understand how these changes can impact health plans. If you have additional questions, contact your OneDigital Consultant or our team of experts.

Learn more about how yours and your employees' health plan may be impacted by the Dobbs v. Jackson decision in the recent blog post: How Your Health Plan May Be Impacted by Dobbs v. Jackson.

 

*It’s important to understand what an Executive Order is and can do. The President’s Executive Order privilege, as authorized by the Constitution, allows the President to issue federal directives to the agencies that are governed by the Executive Branch, e.g. Treasury, Department of Health and Human Services (HHS), Department of Labor (DOL), etc. or provide an interpretation of policy. It does not have force of law but directs agencies on how to carry out or enforce the current law or manage resources. These Executive Orders often result in new or revised regulations from the affected agency(ies).

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