On Thursday, August 4, 2016, the U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR) announced that Advocate Health Care Center (Advocate Health) agreed to pay $5.55 million to settle multiple violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This is the largest HIPAA settlement to date against a single entity, and according to OCR, is due to the severity of the HIPAA violations and the length of time that those violations were allowed to persist. OCR alleged that in some instances, the purported violations date back to the effective date of the HIPAA Security Rule.
HHS-OCR has updated its website with guidance on two important and current issues: ongoing HIPAA audits and deidentification. After officially launching phase two of its audit program earlier this month, sending notification letters to 167 covered entities, HHS-OCR has posted updated guidance on its website regarding the audits. Unrelated to the audits, OCR also posted guidance on the treatment of unique device identifiers (UDIs) under HIPAA’s standards for de-identification and limited data sets.
On June 24, 2016, Catholic Health Care Services of the Archdiocese of Philadelphia (“CHCS”) entered into a resolution agreement with the Department of Health and Human Services Office for Civil Rights (“OCR”) to settle potential violations of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Security Rule after the theft of a CHCS mobile device compromised the protected health information (“PHI”) of 412 nursing home residents. This is OCR’s first settlement with a HIPAA business associate. As part of the settlement, CHCS agreed to enter into a two-year corrective action plan (“CAP”) and pay a monetary penalty of $650,000.
The final text of the much anticipated EU-US Privacy Shield has been sent by the European Commission for review and approval to the Article 31 Committee, which includes representatives from all 28 Member States. Approval by the Article 31 Committee will pave the way for a final decision by the Commission adopting the Privacy Shield, expected on 11 July, 2016. If approved, the Privacy Shield will take effect as soon as the US Department of Commerce establishes a new process for US companies that wish to use the Privacy Shield as a legal basis for data transfers of personal data from the EU to certify in accordance with the new framework. Businesses should examine the final Privacy Shield documents and requirements and determine whether to proceed with certification once the Privacy Shield is approved.
On February 3, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced that an HHS administrative law judge (ALJ) ordered Lincare, Inc., a home health provider of respiratory care, infusion therapy and medical equipment, to pay $239,800 in civil monetary penalties (CMPs) for violating the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule. The violations were disclosing patient information to an unauthorized person, failing to take reasonable safeguards to protect patient information from unauthorized disclosure and failing to implement adequate policies and procedures to protect patient information removed from its offices. This marks only the second time that OCR has imposed CMPs for HIPAA violations.
On December 28, 2015, President Obama signed into law S. 2425, the Patient Access and Medicare Protection Act (the “Act”). In addition to provisions intended to ensure that Medicare reimbursement policies promote continued access to certain durable medical equipment, like wheelchair accessories, the Act includes provisions that affect adoption of Health Information Technology (“HIT”) and those that provide greater protection against medical identity theft. Specifically, the Act recognizes various categories of hardship exceptions from meaningful use requirements for the 2015 reporting period and strengthens the penalties associated with medical identity theft.
On December 18, President Obama signed into law an omnibus spending package for 2016 that included the Cybersecurity Act of 2015 (known in former versions as the Cybersecurity Information Sharing Act). After years of debate, the Cybersecurity Act establishes a framework to facilitate and encourage confidential two-way private sector sharing of cyberthreat information with the federal government and provides liability shields for cyberthreat information sharing, as well as for specific actions undertaken to defend or monitor corporate networks. The Cybersecurity Act also designates the Department of Homeland Security (DHS) to coordinate cyberthreat information sharing.
The Cybersecurity Act has important implications for cooperation among industry participants and with regulatory agencies in development of effective cybersecurity programs. Public-private cyberthreat information sharing is an important step to improve companies’ defenses and responses to the changing cyberthreat landscape. Though the Act is effective immediately, the attorney general and DHS secretary must release guidelines within 90 days.
On October 16, the United States Attorney’s Office for the District of Massachusetts filed a criminal information against a former Warner Chilcott district manager alleging that he had obtained and used patient protected health information (PHI) in violation of the criminal provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The information alleges that this criminal violation occurred in connection with a scheme to promote Warner Chilcott’s osteoporosis drug Atelvia. The charge against former employee Landon Eckles is significant because it appears to be the first time a criminal prosecution under HIPAA has been brought against an employee of a pharmaceutical manufacturer for an alleged HIPAA privacy violation. Eckles pleaded guilty to the charges on November 12.
On Monday, October 5, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) released an online platform for mobile health developers and others interested in the intersection of information technology and health information privacy and security. Interested parties can submit questions and comments on issues related to compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA).