HIPAA DOES NOT PROHIBIT DISCLOSURE OF PROTECTED HEALTH INFORMATION IN ORDER TO ASSERT AFFIRMATIVE DEFENSES TO ABORTION LAW.

16 Nov HIPAA DOES NOT PROHIBIT DISCLOSURE OF PROTECTED HEALTH INFORMATION IN ORDER TO ASSERT AFFIRMATIVE DEFENSES TO ABORTION LAW.

November 16, 2022

Issued to:  Representatives Karla Rose Hanson and Zachary Ista

Request:  Does state or federal law preclude a defendant from disclosing a patient’s PHI?

Conclusion:  Although a patient’s PHI may not be required to prove an affirmative defense in all cases, it is reasonable to anticipate some defendants would need to disclose a patient’s PHI to satisfy the elements of one or more affirmative defenses under the statute. State and federal law do not preclude a defendant from disclosing a patient’s PHI in order to assert an affirmative defense to N.D.C.C. § 12.1-31-12, however, the requirements of the applicable disclosure provision under the HIPAA Privacy Rule need to be met prior to disclosure.

2022-L-06