Privacy and cybersecurity is at the forefront of everyone’s mind these days and, in 2018, the Office for Civil Rights (“OCR”) settled ten cases and prevailed in another before an Administrative Law Judge to the tune of $28,700,000. This is a new record for OCR, besting 2016 by over $5,000,000. The latest settlement clocked in at $3,000,000, owed by a health system in California that experienced two breaches of electronic protected health information (“ePHI”), which affected 62,500 individuals. The first breach involved a security configuration where persons could access files with ePHI without a username or password, thereby making ePHI available to anyone with access to the health system’s server. The second breach involved a server misconfiguration, exposing the health system’s ePHI over the internet, including social security numbers and treatment information. Continue Reading HIPAA Enforcement In 2018 Hits All Time High
For many years, the plaintiffs’ bar has been very active in bringing class action litigation against public companies immediately after the announcement of adverse news concerning a company, which many times triggers a decline in the company’s stock price. Since at least the Yahoo data breach in 2013 (which led to a settled SEC enforcement action and a recently-settled class action lawsuit), plaintiffs’ lawyers have been increasingly drawn to using data breach problems to allege misconduct or fraud by corporate officials charged with keeping the securities markets apprised of all material information about a public company. Continue Reading Federal Court Dismisses Federal Securities Class Action Based on Data Breach
A Colorado Hospital reached an $111,400 settlement with the Office for Civil Rights (“OCR”) for failing to terminate a former employee’s access to electronic protected health information. OCR’s investigation uncovered that the hospital impermissibly disclosed electronic protected health information of over 500 individuals to the former employee because it failed to terminate that employee’s access. Additionally, OCR found that the hospital impermissibly disclosed information to Google Calendar, without a business associate agreement. There are two main takeaways here. Continue Reading Another HIPAA Breach, Another 6-Figure HIPAA Settlement
The Request for Information on Modifying HIPAA Rules to Improve Coordinated Care is slated for publication in the federal register tomorrow. The Department of Health and Human Services’ Office for Civil Rights (OCR) issued an advance copy of the RFI yesterday. Specifically, “OCR seeks information on the provisions of the HIPAA Rules that may present obstacles to, or place unnecessary burdens on, the ability of covered entities and business associates to conduct care coordination and/or case management, or that may inhibit the transformation of the health care system to a value-based health care system.” The public comment period closes 60 days from December 14, 2018. Continue Reading OCR Issues Anticipated RFI on HIPAA Modifications
On Monday, the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) announced a $125,000 settlement with a three-physician allergy practice in Connecticut for HIPAA Privacy Rule violations. According to OCR’s press release and corrective action plan, a physician responded to a reporter’s questions about the allergy practice turning away a patient with a service animal. While the allergy practice had HIPAA policies and procedures in place, the involved physician did not adhere to the policies. Further, once OCR uncovered the issue, it also found that the practice failed to sanction the involved physician in accordance with its policies. Continue Reading Six-Figure OCR Settlement for Three-Physician Practice Failing to Follow Policies
CMS recently sent a proposed request for information (RFI) to the Federal Office of Management and Budget (OMB) for review. The RFI would seek feedback on whether provisions of HIPAA present barriers or otherwise discourage coordination of care among providers, payors and patients. The RFI also seeks feedback on whether HIPAA “impede[s] the transformation to value-based health care without providing commensurate privacy or security protections. . . .” Importantly, the RFI seems to acknowledge some of the most burdensome requirements under HIPAA by requesting feedback on provisions regarding accountings of disclosures and written acknowledgement of receipt of a notice of privacy practices. The RFI also asks for comments regarding good faith disclosures. Hopefully, this is a signal that there may be some common sense changes to HIPAA that reduce burdens on covered entities without jeopardizing patients’ privacy. Stay tuned…
In the age of the data breach, lawyers and law firms have a lot in common with comic book superheroes: they are locked in a relentless battle against a cunning, ever-changing threat. This past week, Foley & Lardner experienced a “cyber event,” adding its name to the list of cyber attack victims which, according to Bloomberg Law, includes DLA Piper, Cravath, Swaine & Moore, Weil, Gotshal & Manges, over one third of small and medium-sized firms, and just under one quarter of large firms. Because of this growing and serious threat to the legal profession, the ABA published Formal Opinion 483 to direct attorneys and law firms on how they should handle data breaches before, during, and after an event. In short, lawyers are not expected to be as bulletproof as Superman, but they must take proactive steps to protect sensitive client data and they must disclose material data breaches. Continue Reading The ABA Says Lawyers Have Obligations Before and After a Data Breach
We’re all guilty of it. We keep things that we don’t need, like that pair of stone-washed jeans from 1992 that you hope will come back into style or your beanie baby collection that you blindly believe might be worth something someday. While our inability to purge old stuff from our closets may cost us closet space, the repercussions for an organization that hoards data are far more significant. From a cybersecurity perspective, the more personal information a company maintains, the more information it has to lose. Consequently, the more information a company loses, the higher the financial and reputational costs.
In this third installation of our weekly series during National Cybersecurity Awareness Month, we examine the importance of vendor due diligence as part of an overall cybersecurity strategy. To do that, we are re-posting the 3-minute video we created earlier this year on the risks vendors pose and simple steps to reduce those risks.
More than three years ago, Anthem, Inc. reported to the U.S. Department of Health and Human Services, Office for Civil Rights (OCR) that it suffered a cyber attack compromising the protected health information of nearly 79 million individuals. This breach continues to be the largest breach of protected health information to date. Yesterday, OCR announced its record-breaking $16 million settlement with Anthem related to the massive breach. Continue Reading Anthem Agrees to Pay Largest HIPAA Settlement at $16M for Massive Breach