Expert: Legal discussion on terminated pregnancy reports in complicated 'gray' area

The Indiana Department of Health stopped sharing individual terminated pregnancy reports, or TPRs, last December due to patient privacy concerns.

But the attorney general and an anti-abortion group say this violates the state’s public records reporting law. One legal expert said reporting requirements and privacy concerns create complicated “gray areas” for state officials to navigate.

With fewer patients receiving abortions following the near-total abortion ban, IDOH raised concerns that releasing the full individual reports could violate patient confidentiality — especially with increased reporting requirements added in 2022.

Jami Sayeed, a visiting assistant professor at the McKinney School of Law at IUPUI, said Indiana has a responsibility to protect patient privacy and fulfill public records reporting requirements — but balancing both of those responsibilities can be complicated.

“One doesn't know what to expect until it happens sometimes, so agencies do have to have that flexibility to shift,” Sayeed said.

Until last year, the reports had been shared publicly since the 1970s. In April, Attorney General Todd Rokita called the change “abrupt,” and released an advisory opinion encouraging the IDOH to release the individual TPRs.

Sayeed said agencies have to adjust as new laws and requirements are implemented and begin interacting with each other.

“While characterizing it as a change, it doesn't necessarily mean it's an unwarranted change,” Sayeed said. “Something to think about and consider, and those factors make a difference for sure.”

The intersection of patient privacy and public records reporting requirements can mean navigating state and federal laws that set up varying responsibilities. Sayeed said when these “combine together” it can become complicated for state officials.

Last year, IDOH shared its concerns with Indiana’s public access counselor. He agreed in an informal opinion. The Access to Public Records Act has an exception for medical records.

Sayeed said the term “medical record” is not defined within APRA.

“That is complicated when it's not defined to determine, but it does go into really looking at what the content is,” Sayeed said.

READ MORE: Despite privacy concerns, attorney general says IDOH should disclose terminated pregnancy reports
 

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The public access counselor’s opinion said IDOH should treat the form “with the same confidentiality considerations as any other patient medical record” because the context in which it was created is an “immediate consequence of a medical service.”

In a lawsuit against IDOH, an anti-abortion group called “Voices for Life” said it requested the forms from the agency following Rokita’s opinion, which claimed TPRs were not patient medical records. The agency withheld the records.

Rokita said that patient privacy concerns could be addressed by redacting information that could be used to identify patients. Sayeed said redaction comes with its own complicated questions.

“Will redaction help prevent reverse engineering in scenarios where there's limited populations and small populations, small areas?” Sayeed said.

Sayeed said redacting information might have the same effect as not having it at all.

“When you talk about an enforcement mechanism — the law requires that abortions be performed with certain criteria and there is an enforcement component under the law,” Sayeed said. “So when you look at access to records, is there enough information to actually honor what the lawmakers wanted to happen and enforce the law?”

Sayeed said the concern around patient privacy is a serious issue when it comes to the intersection of health and administrative law.

“It could deter people from seeking care if they're afraid that their personal information could get out, and that could overall impact public health,” Sayeed said. 

Privacy concerns can act as a barrier and affect the patient-provider relationship. That could potentially lead to compromised care, according to Sayeed.

Sayeed said there are efforts on a federal level to strengthen patient privacy as people raise concerns about how policies impact how they interact with healthcare. She said state agencies have to adapt, but that doesn’t mean those agencies are the only ones involved in the development and implementation of laws and policies.

“Sometimes an issue is not an issue that's known when laws are created until it comes up, and then the lawmakers go in and try to do what they think is best to protect patients' privacy,” Sayeed said. “You'll see those checks and balances in place for how all of our branches work together real time when there's a problem presented or an issue or something that's unclear. And that's what's interesting to watch how all the branches interplay and figure it out.”

Sayeed said lawmakers, agencies and executives work to determine the right course of action, and the courts will weigh in as needed.

Abigail is our health reporter. Contact them at aruhman@wboi.org.

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