Header graphic for print
HIPAA, HITECH & HIT Legal Issues, Developments and Other Pertinent Information Relating To The Creation, Use and Exchange of Electronic Health Records

Category Archives: Privacy & Security

Subscribe to Privacy & Security RSS Feed

Connecticut “Opens Floodgates” for HIPAA Litigation

Posted in Lawsuits, Privacy & Security

My partner Elizabeth Litten and I were recently interviewed for an article entitled “Connecticut ‘opens floodgates’ for HIPAA litigation” published in “Privacy this Week” by DataGuidance. The full text of the article can be found in the November 13, 2014 issue of “Privacy this Week,” but a discussion of the article is set forth below…. Continue Reading

Celebrities’ Health Information Compromised by Sony Hacking

Posted in Privacy & Security, Sensitive Health Information

Fox Rothschild partner Scott Vernick recently appeared as a guest on the Willis Report to discuss the fallout of the hacking of Sony Pictures Entertainment.  Click here to view the segment.  Celebrities’ individually identifiable health information, some of which appears to be protected health information (“PHI”) under HIPAA, was among the sensitive personal data hacked… Continue Reading

Michael Kline’s “List of Considerations” for Indemnification Provisions in Business Associate Agreements

Posted in Privacy & Security

I strongly urge every covered entity and business associate faced with a Business Associate Agreement that includes indemnification provisions to read Michael Kline’s “List of Considerations” before signing.  Michael’s list, included in an article he wrote that was recently published in the American Health Lawyers Association’s “AHLA Weekly” and available here, highlights practical and yet not obvious considerations.  For example,… Continue Reading

Connecticut Supreme Court Decision Depicts Rubik’s Cube of Federal and State Privacy and Security Compliance

Posted in Privacy & Security

As if compliance with the various federal privacy and data security standards weren’t complicated enough, we may see state courts begin to import these standards into determinations of privacy actions brought under state laws. Figuring out which federal privacy and data security standards apply, particularly if the standards conflict or obliquely overlap, becomes a veritable… Continue Reading

Patient Support Groups, Email and the Duty to Warn

Posted in Privacy & Security

I was recently asked whether the sending of an unencrypted group email to participants in a health-related support group violated HIPAA.  Faithful blog readers can guess my first question:  “Was the sender a covered entity, business associate, or subcontractor?”  Many support group entities are non-profit organizations staffed by volunteers and do not meet the definition… Continue Reading

Medical Device, “Heal Thyself” from Data Hacking

Posted in Privacy & Security

Innovative health care-related technology and developing telemedicine products have the potential for dramatically changing the way in which health care is accessed.  The Federation of State Medical Boards (FSMB) grappled with some of the complexities that arise as information is communicated electronically in connection with the provision of medical care and issued a Model Policy… Continue Reading

Which Privacy Protections Apply? HIPAA, FERPA and Ebola

Posted in Privacy & Security, Uncategorized

Recent news articles regarding a New Jersey elementary school’s handling of the enrollment of two new students from Rwanda provided another glimpse of Ebola hysteria and the opportunity for me to follow up on Bill Maruca’s blog about Ebola and HIPAA with yet another (fairly obscure) statutory acronym.  When it comes to protecting the privacy… Continue Reading

Cyber-Sleuth or Cyber-Thief? LabMD Case Continues to Expose the Good, the Bad, and the Downright Ugly in Cyber-Security Developments

Posted in HIPAA Enforcement, Privacy & Security, Uncategorized

LabMD, Inc. CEO Michael J. Daugherty continues to doggedly defend LabMD against an action brought by the Federal Trade Commission (FTC) against LabMD based on Section 5 of the FTC Act.  He now has an opportunity to prove himself the “good guy” following last week’s decision by Chief Administrative Law Judge D. Michael Chappell granting LabMD’s motion that Chappell… Continue Reading

“Step Away from that Subpoena” and Review HIPAA Obligations Before Producing PHI

Posted in Privacy & Security

If you receive a subpoena, discovery request, or even a court order demanding the release or production of documents or files that may contain protected health information (PHI), are you obligated to comply?  The surprising answer, in many cases, is “no”.  Even more surprising may be the fact that, in attempting to comply with what… Continue Reading

The Parade of Major Reported PHI Breaches Surges to 885 – Theft and Loss Dominate the Numbers

Posted in Privacy & Security, Security Breach Notification

The number of large breaches of Protected Health Information (PHI) under HIPAA that have been reported on the so-called “Wall of Shame” (the HHS List) maintained by the U.S. Department of Health and Human Services has jumped by 239 to 885 in less than a year.    The most common breach type is “theft” in this… Continue Reading

Hobby Lobby, HIPAA and Happy Independence Day

Posted in Health Reform, Privacy & Security

The recent United States Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. has  attorneys, pundits, policy-makers and businesses (yes, corporations are people, too) pondering big, quintessentially American issues like the free exercise of religion, compelling government interests, and our fundamental right to make money (and, as a corollary issue, what distinguishes for-profit from not-for-profit corporations). … Continue Reading

Paper Records HIPAA Violation Results in $800,000 Payment under HHS Resolution Agreement

Posted in HIPAA Enforcement, Privacy & Security

My partner Elizabeth Litten was quoted at length by Alexis Kateifides in his recent article in DataGuidance entitled “USA: ‘Unique’ HIPAA violation results in $800,000 settlement.”  While the full text can be found in the June 26, 2014 article in DataGuidance.com, the following considerations are based upon points discussed in the article.  (Elizabeth herself has… Continue Reading

PHI Data Breaches just went from Bad Dream to Nightmare in West Virginia

Posted in Privacy & Security

Michael Coco writes: The dreaded PHI data breach is every covered entity’s bad dream, but the West Virginia Supreme Court just turned that bad dream into a nightmare. The court decided a case, Tabata v. Charleston Area Medical Center, Inc., brought on behalf of thousands of patients requesting class certification to sue the medical center for… Continue Reading

Risky (Health Care) Business: Disclosure of FTC Data Security Enforcement Potential to Investors and Other Third Parties

Posted in Privacy & Security

Readers of this blog know that we have been tracking the FTC’s recent data security enforcement activities with a particular focus on the FTC v. LabMD case.  As reported by Cause of Action, a nonprofit organization involved in the defense of LabMD, the LabMD trial was put on hold on May 30, 2014 until June… Continue Reading

Will Unearthing the FTC’s Data Security Standards Help the Health Care Industry?

Posted in Privacy & Security

As a regulatory lawyer, I frequently find myself parsing words and phrases crafted by legislators and agencies that, all too often, are frustratingly vague or contradictory when applied to a particular real-world and perhaps unanticipated (at the time of drafting) scenario.  So when an agency crafting guidance for a regulated industry has advisors on hand… Continue Reading

OCR Gets Coal in its Stocking from OIG

Posted in Articles, HIPAA Enforcement, HIPTT/HITECH Audits, HITECH Act, Privacy & Security

Who watches the watchdogs to ensure they’re not sleeping on the job? The Office of Inspector General (OIG) of the Department of Health and Human Services has published a report of its review of the Office of Civil Rights’ HIPAA/HITECH Security Rule oversight efforts, and some of the findings are not pretty. The report’s lengthy… Continue Reading

Embarrassing Fact: Few Seem to Understand HIPAA or the ACA (at least when it comes to individual health coverage to be purchased on an Exchange)

Posted in Health IT, Privacy & Security

I read a recent Forbes.com post by Rick Ungar (“Claims That Obamacare Website Violates Health Privacy Reveals Embarrassing Fact – GOP Does Not Understand HIPAA or Obamacare”) that revealed a truly embarrassing fact:  very few of us really understand HIPAA, let alone the intricacies of the Affordable Care Act (“ACA” or “Obamacare”) and its interplay… Continue Reading

Lost in the Shuffle: The September 23 HIPAA Notice Requirements

Posted in HIPAA Business Associates, HIPAA Enforcement, HITECH Act, Omnibus Rule, Privacy & Security, Uncategorized

Our partner Keith McMurdy posted a timely summary of the requirements of the HIPAA Omnibus Rule for employers and benefit plan sponsors at his Employee Benefits Legal Blog.  It is reproduced below: Lost in the Shuffle: The September 23 HIPAA Notice Requirements By Keith R. McMurdy on September 6, 2013Posted in Plan Administration, Welfare Plans… Continue Reading