While the summaries of closed investigations posted on the U.S. Department of Health and Human Services list of breaches of unsecured PHI affecting 500 or more individuals continue to provide highly useful information for covered entities, business associates and subcontractors relative to confronting PHI breaches, large and small, they must be analyzed with appropriate care and attention paid to changes brought about by the recently-published Omnibus Rule.
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Much has been written about the circumstances surrounding the agreement of Massachusetts Eye and Ear Infirmary (“MEEI”) to pay the U.S. Department of Health and Human Services the sum of $1.5 million to settle potential violations involving an alleged 2010 security breach of PHI under HIPAA. However, relatively little has been written that the 2010 breach was the second of what may be three significant PHI breaches experienced by MEEI within the last three years.
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Employers should limit PHI that they provide with respect to medical examinations of employees and job applicants and in other contexts to the least amount of medical information necessary for evaluation in order to avoid potential violations of the Americans with Disabilities Act, the Genetic Information Nondisclosure Act, State workers’ compensation laws and other statutes.
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The settlement in the Accretive Health, Inc. PHI breach case provides a good example of how the blurring of the covered entity and business associate roles can backfire on parties that fail to sufficiently analyze and define such roles, not only at the outset of a relationship but throughout its duration and evolution.
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