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Federal Agencies Issue Guidance After Dobbs Ruling

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In response to the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, the U.S. Department of Health and Human Services (“HHS”) Secretary Xavier Becerra directed HHS agencies to act within their power to protect the rights of patients seeking reproductive care and their providers.  Some of the significant guidance HHS agencies issued in response to Secretary Becerra’s directive includes: 

  • HHS, the U.S. Department of Labor and the Department of the Treasury (the “Departments”) issued a reminder to group health plan sponsors and issuers that the Public Health Service (“PHS”) Act (which also amended the Employee Retirement Income Security Act of 1974 and the Internal Revenue Code) requires that non-grandfathered group health plans and health insurers offering non-grandfathered group or individual health insurance coverage provide contraceptive coverage without cost sharing as preventive care.  The PHS Act requires that plans and issuers cover, without cost sharing, at least one form of contraception in each contraceptive category and also contraceptive services or FDA-approved, cleared or granted contraceptive products that an individual and her attending provider have determined to be medically appropriate.  This mandate includes emergency contraception such as Levonorgestrel (Plan B) and Ulipristal Acetate (Ella).  The Departments referenced reports of non-compliance and urged non-grandfathered group health plans and health insurers to immediately ensure that they are complying with these rules.
  • The HHS Office for Civil Rights (“OCR”) issued guidance clarifying the situations in which the Health Insurance Portability and Accountability Act Privacy Rule permits, but does not require, the disclosure of protected health information to third parties, such as law enforcement. 
  • OCR also issued guidance that advises individuals regarding the extent to which their private medical information is protected when they use personal cell phones and tablets. It also provides tips on the ways in which individuals can protect this information when using health information apps.
  • HHS Centers for Medicare and Medicaid Services (“CMS”) issued a memorandum to State Survey Agency Directors prompting them to ensure that hospitals comply with their existing obligations under the Emergency Medical Treatment and Labor Act (“EMTALA”).  EMTALA requires that hospitals with dedicated emergency departments provide a medical screening examination to any individual who comes to the emergency department and requests one.  It also requires that the hospital provide stabilizing treatment or an appropriate transfer to another hospital that can provide stabilizing treatment in cases where the screening examination reveals that an emergency medical condition exists.  EMTALA defines emergency medical conditions for pregnant women to include ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders such as preeclampsia.  CMS made clear that EMTALA preempts any state law that prohibits abortion when it is the stabilizing treatment necessary for a woman who is experiencing an emergency medical condition.

This guidance does not necessarily cover new ground.  However, it serves as a reminder to those who are subject to these requirements that they may want to confirm compliance to ensure that access to reproductive and contraceptive care after Dobbs remains in place where required by law.