LINCOLN — State officials are demanding access to the private health records of women referred for emergency abortions by some family planning clinics.
The Department of Health and Human Services tucked the new requirement into a recent request for applicants to provide federally funded Title X services in Douglas and Lancaster Counties.
The requirement has some state senators crying foul.
“This is government overreach, and an egregious breach of patient privacy by the department,” State Sens. Sara Howard and Burke Harr of Omaha said in a letter.
They said the requirement violates a compromise reached in the Legislature this spring over limitations on Title X funding. The compromise made it possible for lawmakers to pass the state budget.
HHS spokesman Matt Litt said the requirement is needed to ensure that Title X clinics are complying with the newly enacted limitations.
“If it is found that a clinic made a referral outside of the parameters of the statute, appropriation action could be taken in regards to a clinic’s Title X funding,” he said.
Under the new limitations, clinics getting Title X dollars must be separated legally, physically and financially from organizations that offer abortions or refer women for abortions.
Referrals include giving the names, addresses and contact information of abortion providers.
The compromise allows those clinics to make abortion referrals in emergency situations, defined as cases in which an abortion is needed to prevent a woman’s death or “substantial impairment of a major bodily function.”
The request for applicants, released May 30, requires clinics that make emergency referrals to notify HHS in writing within 10 business days. State officials could then look at records to see if the situation complied with state law.
“DHHS reserves the right to review individual patient records as needed,” the request said.
Clinics could lose their Title X funds if a referral was found to have been made inappropriately.
Litt said HHS officials are in the process of working out how, and by whom, the emergency referrals will be reviewed. But he said the department takes privacy concerns seriously, especially concerning patient health information.
“Patient privacy will be respected and upheld through the process,” he said.
But some senators involved with crafting the compromise said allowing state access to patient records would set a bad precedent and questioned how the information would be used.
“If we’re going to allow the state to find out who has a constitutionally protected procedure, what’s to stop the government from stepping in and using that against people?” Harr said.
Sen. Mike Hilgers of Lincoln, a supporter of limitations who worked on the compromise, said the new requirements appeared reasonable and within HHS’ administrative authority.
He said state officials need to ensure that agencies use public funds in compliance with state and federal law.
He also said he would expect that HHS has the legal ability to see patient records in some instances, although he acknowledged he has not researched this particular situation.
Amy Behnke, head of the Health Center Association of Nebraska, raised several questions about emergency referral reviews. The association represents Nebraska’s federally qualified health centers, including the OneWorld and Charles Drew health centers in Omaha and Bluestem health center in Lincoln.
In a letter to HHS, she asked about the state’s authority to do patient record reviews and to require the 10-day notifications. She asked if there would be an appeal process if the state found that a referral had been made inappropriately.
She also asked if the requirement only applies to funds distributed through the new request for applications or extends to ongoing Title X funding.
“Right now, for our health centers, it’s the lack of clarity and patient privacy” that are concerns, Behnke said.
Title X funds are used to pay for contraceptives, cancer screenings, and testing and treatment for sexually transmitted diseases for low-income women and men.
HHS issued the May 30 request for applicants in an effort to replace the Title X services that had been provided by Planned Parenthood.
The agency, which offers abortions at its Omaha and Lincoln clinics, cannot qualify for Title X funds under the new state limitations. The clinics served half of all Title X patients in Douglas County and 75 percent of the Title X patients in Lancaster County.
Nebraska’s other Title X agencies will likely be able to continue getting the federal dollars. Nebraska received $1.7 million worth of Title X funds in 2017.
The May 30 request seeks responses only from clinics in Douglas and Lancaster Counties. The winning applicants would share $44,682 of funding available for July and August.
Nebraska is in the process of applying for the next three-year round of Title X funding from the federal government.