Late last week, the Department of Health and Human Services (HHS) released its Model Attestation for use as required under its new final rule for the protection of reproductive health information. I explain the attestation requirement in section D of my blog post on the final rule.
On June 18, 2024, I shared my sample attestation form with clients and webinar participants since HHS had not yet released its model (maybe HHS was waiting to look at my sample…). Because both the HHS model and my sample are based on the same regulatory language and HHS commentary, they are very similar.
While I like my form better for ease of use and formatting reasons, I highly recommend that covered entities and business associates use the HHS model attestation for a couple key reasons.
First, the HHS model provides a cover page that explains when an attestation is required. Using a government-approved form will help avoid questions from requestors about why an attestation is required and will support the work of collecting such attestations. In my comments to the proposed rule, I explained to HHS that:
Healthcare providers often struggle with attorneys and others unfamiliar with HIPAA. Many question the provider’s understanding of the HIPAA rules and demand action that is contrary to the regulations. A[n HHS]-approved form with a short explanation of the legal basis for the required attestation would greatly reduce the burden on healthcare providers and staff. Further, it would facilitate and streamline compliance.
Second, the HHS model has instructions not only for the requestor but also for the covered entity or business associate. This never hurts.
Operationalizing the various changes under the new final rule will be a challenge, as we covered in the June 18, 2024 webinar. While there is no requirement to use HHS’s model attestation, using it will ease (but not eliminate) the burden of operationalizing the attestation requirement.
The HHS Model Attestation can be found here: https://www.hhs.gov/sites/default/files/model-attestation.pdf