News and information useful to Cleveland State College of Law students, faculty and staff.

Recent HHS, Labor and Treasury Departments Guidance on ACA Birth Control Coverage

photo of package of birth control pillsRecently, the U.S. Department of Health and Human Services (HHS), Department of Labor (DoL), and Department of the Treasury jointly issued guidance clarifying “protections for birth control coverage under the Affordable Care Act (ACA, Pub. L. 111-148).”  Announcing the guidance, HHS Secretary Xavier Becerra stated “under the ACA, you have the right to free birth control – no matter what state you live in,” and Labor Secretary Martin Walsh remarked “today’s guidance makes clear that the law requires group health plans and health insurance issuers to provide contraceptive coverage – including emergency contraception – at no cost to participants.”  The guidance is written as a series of FAQs on coverage of preventive services “to help people understand the law and promote compliance.”  Coverage of preventive services is specifically referenced in ACA Section 2713 (codified at 42 U.S.C. 300gg-13) and implementing regulations (ie, 26 C.F.R. 54.9815-2713, 29 C.F.R. 2590.715-2713, and 45 C.F.R. 147.130).  Beyond the HHS website, the new joint guidance is also available as Health Part 54 on the DoL Resource Center FAQs page.

Recent FTC Commitment on Protecting Consumers’ Health Privacy

FTC SealPart of the 7/8/2022 Executive Order 14076 – Protecting Access to Reproductive Healthcare Services – required the U.S. Federal Trade Commission (FTC) to consider actions “to protect consumers’ privacy when seeking information about the provision of reproductive healthcare services.”  On 7/11/2022, Kristin Cohen, Acting Associate Director of the FTC Division of Privacy & Identity Protection, posted “Location, Health, and other Sensitive Information: FTC Committed to Fully Enforcing the Law Against Illegal Use and Sharing of Highly Sensitive Data” on the FTC Business Blog.  Cohen discussed the capability of connected devices “directly observing or deriving sensitive information about users,” particularly “a person’s precise location and information about their health.”  She also highlighted “information related to personal reproductive matters” and noted several FTC actions against companies that misuse consumers’ data, such as the 1/13/2021 FTC settlement with Flo Health (which had shared with third parties sensitive health information about women).  Perhaps most revealing, Cohen stated “We will vigorously enforce the law if we uncover illegal conduct that exploits Americans’ location, health, or other sensitive data.  The FTC’s past enforcement actions provide a roadmap for firms seeking to comply with the law.”  Cohen’s post ends with a link to the FTC Business Guidance – Privacy and Security page, which includes information on Health Privacy.

Recent HHS Actions on Access to Reproductive Healthcare Services

DHHS logoFollowing the 6/24/2022 Dobbs v. Jackson Women’s Health Organization U.S. Supreme Court decision, the U.S. Department of Health and Human Services (HHS) initiated a 5-step action plan that prioritizes “increasing access to medication abortion; protecting patients and providers from discrimination and ensuring privacy for patients and providers; protecting emergency abortion care; ensuring providers have family planning training and resources; and strengthening family planning care including emergency contraception.”  HHS also launched the public awareness website, which includes information on rights to birth control, medication, abortion services, and other preventive health services.  Following the 7/8/2022 Executive Order 14076 – Protecting Access to Reproductive Healthcare Services, via the Centers for Medicare & Medicaid Services, HHS issued clarifying guidance on the Emergency Medical Treatment and Active Labor Act (EMTALA), reaffirming “that it protects providers when offering legally-mandated, life- or health-saving abortion services in emergency situations” and that EMTALA “preempts state law restricting access to abortion in emergency situations.”  HHS also issued guidance to U.S. retail pharmacies reminding them of their “obligations under federal civil rights laws to ensure access to comprehensive reproductive health care services.”

Linking Well-Being and DEI in the Legal Profession

A recent article by Ohio State University Moritz College of Law Professor Katrina Lee looks at diversity, equity, and inclusion (DEI) and lawyer well-being in law firms. Prof Lee provides an overview of the two topics, discusses the unique impacts of the COVID pandemic and the “racial reckoning” of 2020-2021, and describes law firms’ efforts to promote DEI and lawyer well-being. She notes that DEI and lawyer well-being have traveled on two separate tracks in the legal profession, but that it is time these two efforts coalesce in order to advance women of color in the legal profession. She offers some suggestions for steps law firms can take to link DEI and lawyer well-being.

Katrina Lee, Solving for Law Firm Inclusion: The Necessity of Lawyer Well-Being, 24 Vand. J. Ent. & Tech. L. 323 (2022) [Full text through SSRN]

Executive Order on Protecting Access to Reproductive Healthcare Services

image of the Seal of the President of the United StatesOn 7/8/2022, U.S. President Joseph R. Biden signed Executive Order 14076 – Protecting Access to Reproductive Healthcare Services.  The Executive Order instructs the Secretary of Health and Human Services (HHS) within 30 days to submit a report identifying:  potential actions “to protect and expand access to abortion care” and “the full range of reproductive healthcare services”; “ways to increase outreach and education about access to reproductive healthcare services”; and “steps to ensure all patients … receive the full protections for emergency medical care afforded the law….”  The Executive Order also requires consideration of actions by:  the Federal Trade Commission “to protect consumers’ privacy when seeking information about the provision of reproductive healthcare services”; and the HHS Secretary “to strengthen the protection of sensitive information related to reproductive healthcare services.”  Other key components of the Executive Order create an Interagency Task Force on Reproductive Healthcare Access (co-chaired by the HHS Secretary and White House Gender Policy Council Director) “to identify and coordinate activities to protect and strengthen access to essential reproductive healthcare services,” and instruct the Attorney General to provide technical assistance “concerning Federal constitutional protections to States seeking to afford legal protection to out-of-State patients and providers who offer legal reproductive healthcare.”