Lawmakers ask HHS to expand federal health regulations to require a warrant for law enforcement access to all medical records, prohibit sharing records with other law enforcement agencies, and require patient notification of record disclosure

Washington (July 18, 2023) – Senator Edward J. Markey (D-Mass.) joined Senators Ron Wyden (D-Ore.) and Patty Murray (D-Wash.) and Representative Sara Jacobs (CA-51), who led colleagues, in urging the Biden administration to go further in its proposed update of federal privacy regulations under the Health Insurance Portability and Accountability Act (HIPAA) and ensure that Americans’ protected health information (PHI) – for all categories of medical care – receive the same protections that emails and location data already receive.  

“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. But current legal protections for PHI are woefully insufficient,” the lawmakers wrote in a letter to Department of Health & Human Services (HHS) Secretary Xavier Beccera. “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.”

On April 12, 2023, the 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. While the proposed rule makes important strides in protecting reproductive health data, it does not propose a warrant standard for access to medical records containing reproductive health data, and narrowly protects certain reproductive records while not expanding the legal protections for all other categories of sensitive health records.

In their letter, the lawmakers ask HHS to go further to protect Americans’ constitutional rights and personal privacy and significantly expand the protections in the HIPAA regulations, so all PHI is afforded the same protections as location data and the contents of phone calls, emails and text messages, including by:

• Requiring that law enforcement agencies obtain a warrant before forcing doctors, pharmacists, and other health care providers to turn over their patients’ PHI. This change would align federal health privacy regulations with the protections for Americans’ medical records under the Fourth Amendment and is consistent with the protections afforded to other sensitive data under federal law and the Fourth Amendment. For example, law enforcement agencies need a warrant to wiretap someone’s phone calls, obtain their emails and text messages, or track their phone’s location.
• Requiring that warrants for PHI prohibit sharing those records with other law enforcement agencies, except to further the particular investigation identified in the relevant warrant application.
• Requiring that patients be notified when their PHI is disclosed to law enforcement agencies. Such a change in practice would be consistent with congressionally-enacted notice requirements for wiretaps and bank subpoenas.

“Americans expect their PHI to be at least as private as their email and text messages, phone calls and location data. While federal and state courts around the country have recognized the importance of protecting Americans’ medical privacy, HHS’ regulations have lagged behind,” the lawmakers wrote. “HHS should update the HIPAA regulations to meaningfully protect the privacy of Americans’ PHI by requiring a warrant for disclosures to law enforcement agencies. Instead of limiting this higher standard to narrow categories of records, HHS should apply this protection across the board, regardless of the illness, disease, or medical issue.”

In the Senate, the letter is signed by Senators Tammy Baldwin (D-Wis.), Cory Booker (D-N.J.), Sherrod Brown (D-Ohio), Maria Cantwell (D-Wash.), Tammy Duckworth (D-Ill.), John Fetterman (D-Pa.), Kirsten Gillibrand (D-N.Y.), Martin Heinrich (D-N.M.), Mazie Hirono (D-Hawai'i), Alex Padilla (D-Calif.), Bernie Sanders (I-Vt.), Debbie Stabenow (D-Mich.), Chris Van Hollen (D-Md.), Raphael Warnock (D-Ga.), Elizabeth Warren (D-Mass.) and Peter Welch (D-Vt.).

In the House, the letter is signed by Representatives Becca Balint (VT), Earl Blumenauer (OR-03), Suzanne Bonamici (OR-01), Jasmine Crockett (TX-30), Madeleine Dean (PA-04), Veronica Escobar (TX-16), Anna Eshoo (CA-16), Josh Gottehimer (NJ-05), Raúl Grijalva (AZ-07), Val Hoyle (OR-04), Pramila Jayapal (WA-07), Hank Johnson (GA-04), Ro Khanna (CA-17), Barbara Lee (CA-12), Ted Lieu (CA-36), Zoe Lofgren (CA-16), Jim McGovern (MA-02), Eleanor Holmes Norton (DC), Ilhan Omar (MN-05), Delia Ramirez (IL-03), Andrea Salinas (OR-06), D-Ore., Adam Schiff (CA-30), Mikie Sherrill (NJ-11), Rashida Tlaib (MI-12), David Trone (MD-06), Nydia Velazquez (NY-07), and Nikema Williams (GA-05).

A signed copy can be found HERE.

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