First Multistate HIPAA Data Breach Lawsuit May Signal Increased State Interest in Data Security Enforcement
On December 3, 2018, twelve attorneys general (“AGs”) jointly filed a data breach lawsuit against Medical Informatics Engineering and its subsidiary, NoMoreClipboard LLC (collectively “the Company”), an electronic health records company, in federal district court in Indiana. See Indiana v. Med. Informatics Eng’g, Inc., No. 3:18-cv-00969 (N.D. Ind. filed Dec. 3, 2018). The suit—led by Indiana Attorney General Curtis Hill—is joined by AGs from Arizona, Arkansas, Florida, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Nebraska, North Carolina and Wisconsin. While state AGs have previously exercised their civil enforcement authorities under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), this is the first multi-state data breach lawsuit alleging HIPAA violations in federal court and may signal increased interest on the part of state officials in exercising their data protection authorities to address cybersecurity incidents.
In Landmark Case, Illinois Supreme Court Sets Low Bar For Claims Under Illinois’ Biometric Information Privacy Act
On January 25, 2019, the Illinois Supreme Court unanimously held that a plaintiff does not need to allege any actual injury or damages to successfully state a claim under the Illinois Biometric Information Privacy Act (BIPA). Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 (Jan. 25, 2019) (a copy of the opinion is available here). A violation of the statute by itself is sufficient to state a claim, even if no breach or misuse of the biometric information or identifier has occurred. Because BIPA includes stiff liquidated damages for violations, the court’s ruling is likely to lead to renewed interest by the plaintiffs’ bar in class action suits alleging BIPA violations. (more…)
HHS Releases Cybersecurity Guidance for Healthcare Organizations
On December 28, 2018, the U.S. Department of Health and Human Services (HHS) released a four-volume cybersecurity guidance document for healthcare organizations. The publication, “Health Industry Cybersecurity Practices: Managing Threats and Protecting Patients” (HICP), is the result of a government and industry collaboration mandated by the Cybersecurity Act of 2015. The HICP is not limited to individually identifiable health information but instead covers organizations’ enterprise-level information security more generally. HHS describes the publication as “practical, understandable, implementable, industry-led, and consensus-based voluntary cybersecurity guidelines to cost-effectively reduce cybersecurity risks for healthcare organizations of varying sizes.” Notwithstanding their voluntary nature, these HHS-backed cybersecurity recommendations are likely to serve as an important reference point for the industry. (more…)
HHS Requests Feedback on HIPAA Changes Designed to Improve Care Coordination
On December 14, 2018, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) published in the Federal Register a request for information (RFI) titled “Modifying HIPAA Rules to Improve Coordinated Care.” The RFI seeks public input on a broad range of potential reforms to Health Insurance Portability and Accountability Act (HIPAA) regulations with a focus on enhancing care coordination. Though only a preliminary step on the path to potential regulatory reform, the RFI’s scope is significant, as is the opportunity it affords stakeholders interested in sharing early input as HHS considers reforms to key health information privacy requirements. (more…)
Regulatory Update: NAIC Fall 2018 National Meeting
The National Association of Insurance Commissioners (NAIC) held its Fall 2018 National Meeting (Fall Meeting) in San Francisco, California, from November 15 to 18, 2018. This post summarizes the highlights from this meeting. (more…)
U.S. Launches Review of Export Controls on Emerging Technologies: Five Key Takeaways
The U.S. Department of Commerce, Bureau of Industry and Security (BIS) has published an advance notice of proposed rulemaking (ANPRM) initiating a 30-day public comment process regarding export controls for certain emerging technologies. The notice launches the implementation of a key provision of the Export Control Reform Act of 2018 (ECRA), part of the National Defense Authorization Act for fiscal year 2019 (NDAA). In the ECRA, Congress authorized BIS to establish controls on the export, reexport and transfer (in country) of “emerging and foundational technologies.” The ANPRM, including a list of the 14 proposed representative technology categories and subcategories subject to review, can be found here. Our prior updates on the NDAA and ECRA can be found here.
Proposed Changes to Federal Health Privacy Regulations Now at OMB for Review
The Administration is preparing to release a Request for Information (“RFI”) on potential modifications to Health Insurance Portability and Accountability Act (HIPAA) rules. The draft RFI was recently submitted by the Department of Health and Human Services (“HHS”) to the White House’s Office of Management and Budget (“OMB”) for pre-release review.
Three Boston-Area Hospitals Settle HIPAA Allegations Arising From On-Site Filming of Television Documentary
Three Boston-area hospitals collectively paid just under $1 million to settle allegations that they violated HIPAA by improperly disclosing patients’ identities and other protected health information during onsite filming of a television network documentary. According to the Department of Health and Human Services Office for Civil Rights (OCR)’s September 20, 2018 press release, the three hospitals – Boston Medical Center (BMC), Brigham and Women’s Hospital (BWH), and Massachusetts General Hospital (MGH) – permitted film crews to film an ABC television network documentary series on premises without first obtaining authorizations from patients. Collectively, the three hospitals paid $999,000 to settle potential violations of the HIPAA Privacy Rule, with BMC paying $100,000, BWH paying $384,000, and MGH paying $515,000.
New Belgian Data Protection Act Takes Effect
On September 5, 2018, the new Belgian Data Protection Act implementing the GDPR (the Belgian Act) was published and entered into force. Despite the GDPR being an EU regulation that directly applies to all EU Member States, several provisions of the GDPR explicitly allow, and even require, Member States to enact legislation which implements the law. Member States were expected to have this legislation in place by May 25, 2018, but the majority of Member States (including Belgium) did not meet the deadline. Since December 2017, however, Belgium has had in place a law implementing many of the more procedural provisions of the GDPR, namely the Act on the Establishment of the Supervisory Authority (the SA Act). The SA Act lays down the structure, powers and competence of the new Belgian Supervisory Authority, and also includes rules of procedure applicable to administrative proceedings before the Authority. (more…)
Dutch Supervisory Authority Investigates GDPR Compliance in the Healthcare Sector
On 21 August 2018, the Dutch Supervisor Authority announced that it had conducted an investigation into the designation of a Data Protection Officer (DPO) under the General Data Protection Regulation (GDPR) by 91 hospitals and 33 healthcare insurers in the Netherlands. Two hospitals had not yet communicated the contact details of their DPO to the Dutch Supervisor Authority, and were given four weeks to designate a DPO. In addition, the Supervisor Authority found that 25% of the hospitals and healthcare insurers whose practices were reviewed did not properly publish their DPO’s contact details on their website. They will also be expected to implement the necessary compliance measures. (more…)