The comment period for the U.S. Department of Health and Human Services Office for Civil Rights (OCR proposed changes to Privacy Rule ended on June 16, 2023, and the first portion of comments have been released to the public. As of June 19, 2023, 25,905 comments were submitted to the U.S. Department of Health and Human Services Office for Civil Rights (OCR), with 65 of those comments being made publicly available for review.

The publicly available comments can be viewed on under the “Browse Posted Comments” tab. The relevant changes at issue were announced on Monday, April 12, 2023 by the OCR issuing a notice of proposed rulemaking (NPRM) to modify the HIPPA Privacy Rule to address the release of reproductive health care information to third parties for the purposes of civil, administrative, or criminal proceedings for care that is lawfully obtained.

Comment Demographics

While not all comments have been made public at this time, the first publicly posted comments indicate a few trends regarding the individuals and entities choosing to comment. Most comments made available to the public have come from individual actors.

 However, there have been a few notable comments made by larger organizations such as the American Hospital Association, the Network for Public Health Law, and the American Academy of Family Physicians.

Of the individuals who left comments, there was a notable population of individuals with experience in mental health care and social work. Additionally, there were a high number of comments from academics and students who have or are currently studying health policy.

Within each group of commenters, a number of repeating themes show through. Primary among those was the concern for confidentiality between patients and health care providers, particularly in relation to what the comments saw as highly sensitive private health information (PHI).

Comments from organizations and associations

Even though the comments from large organizations varied in content given the different purposes and goals of each organization, there were several key themes repeated throughout the comments. The most consistent theme was the need for continued confidentiality between patients and health care providers, as open communication is necessary for diagnosis and treatment to be accurate and complete. There are concerns from these groups that without the proposed changes, individuals may be less willing to seek necessary treatment or may withhold information from their providers which could result in worse health outcomes overall. OCR expressed similar concerns when proposing the changes to the HIPAA Privacy Rule.

Another repeated topic from these groups involved a push for the proposed rule to be expanded to other types of “highly sensitive PHI,” specifically sexual health and gender-affirming care or other health services supporting gender diverse individuals.

Several organizations expressed similar concern for data related to sexual health care and gender-affirming care given that several states have passed or are attempting to pass bills which ban gender-affirming care. Several comments addressed the topic of historical reproductive health care disparities. These organizations expressed concern regarding how women of color would be affected by the new reproductive health care landscape if the proposed rule is not adopted. The organizations discussed how women of color already face disparities in every reproductive health measure such as contraceptive use, Pap tests, mammograms, maternal mortality, and unintended pregnancies. Thus, there is an additional concern that these already existing disparities may be further exacerbated if no additional privacy measures are put into place.

Comments from individuals

The comments from individuals shared many of the same themes as those from organizations. Most commenters discussed privacy and confidentiality between patients and their health care providers along with the impacts a decline in those confidences would have on overall health outcomes. Several commenters also expressed pro-choice sentiment and support for the changes as a way to provide safer access to abortions for those who wish to terminate their pregnancy.

While most comments expressed support for the proposed rule, there were a few that noted significant opposition. These comments focused on two main concerns regarding the proposal. First, there were those commentors who were opposed to additional protection based on the position that citizens should be held accountable for illegal actions and should not escape such repercussions by avoiding their state law and traveling to another state for treatment. Second, some commentors expressed strong concerns regarding the proposed revision of the term “person” to exclude fertilized eggs, embryos, or fetuses.

Reed Smith continues to track developments related to this proposed rulemaking. For additional information about this proposed rule, please see our article: Proposed changes to HIPAA highlight increased demands for third party access to reproductive health data.  Should you have any questions about the proposed modifications to the HIPAA Privacy Rule, questions about the available public comments on the rule, or have other health care compliance concerns, please do not hesitate to reach out to the authors of this post or the other health care attorneys at Reed Smith.

This post was co-authored by Erin Apsokardu, a Reed Smith summer associate.