HIPAA

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Congress established the Health Care Industry Cybersecurity Task Force (the “Task Force”) in the Cybersecurity Act of 2015 (the “Act”) to address the challenges the health care industry faces when securing and protecting itself against cybersecurity incidents.  While all health care delivery organizations have a responsibility to secure their systems and patient data, many organizations face significant resource constraints, which hinders their ability to do so.  As a result, the public has seen an increase in ransomware attacks and large privacy breaches, which inevitably affects patient care.

This month, the Federal Trade Commission (FTC) issued guidance on privacy and security best practices for health-related mobile apps, such as fitness apps connected with wearables, diet and weight loss apps, and health insurance portals.  At the same time, the FTC unveiled an interactive tool designed to direct health app developers to federal laws and regulations that may apply to their apps.  The Mobile Health Apps Interactive Tool, which is the product of collaboration among the FTC, Department of Health and Human Services’ Office of National Coordinator for Health Information Technology (ONC), Office for Civil Rights (OCR), and the Food and Drug Administration (FDA), seeks to unify guidance in a space governed by a complicated web of legal requirements.  It also signals the continued focus of regulators on the protection of consumer health information in this rapidly evolving space.

On November 19, 2015, Lahey Hospital and Medical Center (“Lahey”) entered into an $850,000 settlement with the U.S. Department of Health and Human Services (“HHS”), Office for Civil Rights (“OCR”) for alleged violations of the Health Insurance Portability and Accountability Act of 1996 or “HIPAA”. As part of the settlement, Lahey must adopt a robust corrective action plan, which became operational on November 19, 2015, and will last for two years.

The settlement reinforces the importance of conducting HIPAA risk assessments with respect to the individually identifiable information in electronic form that is protected by HIPAA, referred to as “electronic protected health information” or “ePHI.”  The settlement also underscores that covered entities must timely identify and respond to security incidents, and promptly mitigate any harmful effects. In addition, the settlement highlights the critical nature of physical workstation security, in particular where health care delivery involves the use of portable devices that store ePHI, and the value of employing technical solutions that encrypt data at rest that is stored on portable devices.

On April 23, 2015, Washington State Governor Jay Inslee signed into law a bill strengthening the state’s data breach notification law (amending Wash. Rev. Code §§ 19.255.010 and 42.56.590 and creating a new section). H.B. 1078 makes the following substantial changes to the existing law:

  1. Under the current law, businesses and agencies that own or license computerized data including personal information about a Washington resident must disclose any breach in the security of the system involving such personal information that is unencrypted. H.B. 1078 expands this requirement to include:
    • both computerized and hard copy data that contain personal information that is not “secured;” and
    • encrypted information when the person gaining unauthorized access to the data had access to the encryption key or an alternative means of deciphering the “secured” data. The amendment also provides a standard for encryption.

With the news of the recent cyber-attack and resulting data breach at health insurance giant Anthem Inc., the buzz around data security and privacy is again high.  The Anthem breach serves as a reminder to those entities subject to the Health Insurance Portability and Accountability Act (HIPAA) that failing to keep protected health information secure and private can lead to serious consequences.  

Like many federal statutes, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) contains a provision governing how the statute is designed to interact with similar or otherwise related state laws.  When this type of provision is used to override or supplant similar state laws, the provision is called “preemptive.”  On November 11, 2014, the Connecticut Supreme Court held in Byrne v. Avery Center For Obstetrics and Gynecology, P.C. that state law negligence claims are not preempted by HIPAA even where the plaintiff relies on HIPAA to establish the applicable standard of care.  In so holding, the Court

On July 23, 2014, the Massachusetts Attorney General announced a consent judgment with an out-of-state Rhode Island hospital, Women & Infants Hospital of Rhode Island (“WIH” or the “Hospital”), resolving a lawsuit against WIH for violations of federal and state information security and privacy laws involving the loss of over 12,000 Massachusetts residents’ sensitive patient health records.  The regulations and laws at issue were Mass. G.L. c. 93A, Mass. G.L. c. 93H and its implementing regulations codified at 201 C.M.R. 17.00 et. seq., as well as federal regulations under the Health Insurance Portability and Accountability Act (“HIPAA”).

We have heard the well-publicized stories of stolen laptops and resulting violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and we generally recognize the inherent security risks and potential for breach of unsecured electronic protected health information posed by computer hard drives. We remember to “wipe” the personal data off of our phones or computers before they are disposed, donated, or recycled.

A recent HIPAA settlement offers a costly reminder that other types of office equipment we use regularly have similar hard drives capable of storing confidential personal information.