On September 23, 2018, California’s governor signed into law the first round of revisions to the California Consumer Privacy Act (CCPA), the most sweeping privacy legislation in this country.  California enacted the CCPA in June and it takes effect on January 1, 2020.  Inspired by the European Union’s General Data Protection Regulation, the California legislature initially drafted the CCPA in haste to avoid a ballot initiative containing more onerous provisions for businesses.  Not surprisingly, the hurried and voluminous legislation contained a number of issues that ranged from drafting errors to significant enforcement and compliance hurdles.  Accordingly, as expected, at the end of August, the legislature passed S.B. 1121, which contained several revisions to address some but not all of those issues, including a possible enforcement delay of up to six months.
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On September 20, the Department of Health and Human Services Office for Civil Rights (OCR) announced separate settlements with Boston Medical Center (BMC), Brigham and Women’s Hospital (BWH) and Massachusetts General Hospital (MGH) with penalties totaling $999,000.  In each instance, a news story about ABC News filming a medical documentary (a Boston Globe article on BMC and BWH and a posting on MGH’s website) prompted OCR to conduct “a compliance review.”  In all three separate investigations, OCR found deficiencies.  While the BMC settlement agreement does not provide any details on the specifically alleged improper conduct, the BWH and MGH agreements note that both hospitals took measures to protect patient information but nonetheless OCR found the efforts to be inadequate.  In those agreements, OCR implies that BWH and MGH obtained at least some written authorizations but disclosed information to the film crews before obtaining those authorizations.
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In recognition of the vulnerability of mobile devices and the daily use of those devices in health care, the National Institute of Standards and Technology (NIST) and the National Cybersecurity Center of Excellence (NCCoE) released a practice guide earlier this month entitled Securing Electronic Health Records on Mobile Devices (NIST Special Publication 1800-1).  NIST and

On August 3, 2018, the Governor in Ohio signed into law the Data Protection Act, which provides businesses with an affirmative defense to data breach claims if the business was in compliance with reasonable security measures at the time of the breach.  Specifically, a business would have to show that it creates, maintains and

The much-anticipated Ponemon Institute 2018 Cost of Data Breach Study: Global Overview is out and, not surprisingly, the cost of a data breach continues to rise.  In this country, the cost is up $8 per record, going from $225 per record last year to $233 per record this year.  A more alarming jump, however, is the cost of a data breach in the health care sector, which is up to $408 per record from $340 just one year ago.  In terms of controlling costs, the study provides solid evidence that swift response and incident response planning save money.
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On July 5, 2018, the EU Parliament passed a non-binding resolution encouraging the European Commission to suspend the EU-US Privacy Shield Program unless the US is fully compliant by September 1, 2018.  The EU Parliament believes that the current Privacy Shield program does not provide an adequate level of protection required by European law.  This comes roughly two years after the European Commission deemed the EU-US Privacy Shield Framework adequate to enable data transfers under EU law.  But a lot has changed in two years. 
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You could almost hear the cheers of plaintiffs’ class action lawyers in California last night, as California’s governor signed the most sweeping privacy law this country has seen to date.  Notably, the law gives consumers the right to statutory damages in the event of a breach if the company holding the consumer’s information failed to implement reasonable security measures.  Those statutory damages are not less than $100 and not more than $750 “per consumer per incident or actual damages, whichever is greater.”
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This week, the Department of Health and Human Services Office for Civil Rights (OCR) issued guidance on the use of HIPAA-compliant authorizations for research based on a mandate in the Cures Act for such guidance.  The guidance addresses authorizations and expiration language for future research as well as revocation of the authorization.  A copy of the guidance can be obtained here
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