HIPAA Privacy Rule

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The U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) will start to enforce compliance later this month with new special protections for individuals’ reproductive health information as required by a recently finalized HIPAA Privacy Rule, as we noted in an earlier blog post. While the incoming Trump Administration may change enforcement priorities or even rescind that rule, a settlement from OCR that pre-dated implementation of that rule indicates that OCR already affords this information protection.

The settlement marks OCR’s first enforcement action and settlement against a health care provider centered around, and specific to, an impermissible disclosure of an individual’s reproductive health information under the existing Privacy Rule standards. In other words, regardless of whether the incoming administration rescinds or revises the new protections for reproductive health information, OCR has demonstrated that it considers reproductive health information as highly sensitive and will take enforcement action accordingly under the HIPAA Privacy Rule as it is today.

Organizations would be well advised to take the remaining time before the December 23 compliance date to update existing policies to define the scope of reproductive health care-related protected health information (PHI) within the organization and set forth standards and procedures for how the organization will implement compliance with the new requirements including, for example, how the organization will assess and respond to third-party requests for reproductive health care-related PHI, including situations in which an attestation is required.Continue Reading OCR Sets Precedent with Settlement Over Impermissible Disclosure of Reproductive Health Information

Hospitals and large healthcare organizations have increasingly become prime targets for cybercriminals. In response, the Department of Health and Human Services (HHS) has established a new initiative within the National Institutes of Health (NIH) aimed at enhancing cybersecurity measures for hospitals.

This initiative, called “Universal Patching and Remediation for Autonomous Defense” (UPGRADE), was launched on May 20. UPGRADE’s mission is to develop a tailored and scalable suite of software tools that will enable hospital IT teams to effectively combat ransomware attacks and reduce the time needed to patch vulnerable healthcare products from months to just days or weeks.Continue Reading HHS Pledges $50 million to Empower Hospitals in the Battle Against Cyberattacks

In a final rule published on April 26, the U.S. Department of Health and Human Services (“HHS”) amends the HIPAA Privacy Rule to bolster protections for individuals’ reproductive health information. This final rule comes almost exactly a year after HHS published its draft rule on the subject.

The rule is part of the Biden administration’s effort to address the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. Dobbs’ reversal of Roe v. Wade resulted in a patchwork of state laws governing abortion, some of which require or permit health care providers to release personal information about reproductive health care to state authorities for patients who sought an abortion.

The rule is scheduled to take effect on June 25, 2024 and most provisions will be enforceable as of December 23, 2024. Below, we summarize in more detail some of the notable changes to the HIPAA Privacy Rule. Continue Reading HHS Modifies HIPAA Privacy Rule to Shield Reproductive Health Information from Third Party Access

The comment period for the U.S. Department of Health and Human Services Office for Civil Rights (OCR proposed changes to Privacy Rule ended on June 16, 2023, and the first portion of comments have been released to the public. As of June 19, 2023, 25,905 comments were submitted to the U.S. Department of Health and Human Services Office for Civil Rights (OCR), with 65 of those comments being made publicly available for review.

The publicly available comments can be viewed on Regulations.gov under the “Browse Posted Comments” tab. The relevant changes at issue were announced on Monday, April 12, 2023 by the OCR issuing a notice of proposed rulemaking (NPRM) to modify the HIPPA Privacy Rule to address the release of reproductive health care information to third parties for the purposes of civil, administrative, or criminal proceedings for care that is lawfully obtained.Continue Reading HIPAA Privacy Rule commenters express concerns about privacy, health outcomes, LQBTQIA+ rights, and historical health care disparities

On Monday, April 12, 2023, the U.S. Department of Health and Human Services Office for Civil Rights (OCR) issued a notice of proposed rulemaking (NPRM) to modify the HIPAA Privacy Rule to address the release of reproductive health care information to third parties for the purposes of civil, administrative, or criminal proceedings for care that is lawfully obtained.

OCR has also released a fact sheet on this NPRM. The NPRM included: (1) the addition of new protections with respect to certain information related to reproductive health care; (2) a new obligation for regulated entities to obtain “attestations” (which are different from HIPAA’s traditional authorization) before responding to requests for certain PHI related to reproductive health care; and (3) the modification of the definition of “person,” and the addition of several new definitions.Continue Reading Proposed changes to HIPAA highlight increased demands for third party access to reproductive health data

Health care and health care-adjacent organizations are seeing a steep increase in risk arising from the frequently utilized third-party analytics and advertising services on their websites, mobile applications, patient portals, and other Internet-connected services. Those organizations should pay attention to new regulatory guidance, published settlements with regulators, and an onslaught of class action filings stemming…

The Department of Health and Human Services recently issued a proposed rule that would streamline the federal regulations governing the confidentiality of substance use disorder (SUD) patient records at 42 CFR Part 2 (Part 2) with the Health Insurance Portability and Accountability Act and its implementing regulations (HIPAA). Comments on the proposed rule are due to HHS by January 31, 2023

For years, health care providers regulated by both Part 2 and HIPAA and their patients, have wrestled with the inconsistencies across these two privacy frameworks. Part 2, for example, currently imposes different patient consent requirements and disclosure restrictions on Part 2-protected SUD treatment records (Part 2 Records) than HIPAA, even though such records often constitute protected health information (PHI) as well. The inconsistencies (and in some cases, conflicts) between HIPAA and Part 2 requirements have created barriers to information sharing and confusion and compliance challenges for entities regulated under both frameworks, which in turn have unnecessarily impeded treatment access and care coordination.

As noted in the HHS fact sheet and the press release issued by the Substance Abuse and Mental Health Services Administration (SAMHSA), the proposed rule would, if finalized, enhance care coordination, afford patients a formal right of access to their SUD records, and extend HIPAA’s breach notification standards to Part 2-regulated providers and information. The proposed rule would also allow health care providers to align internal privacy compliance programs, the importance of which is underscored by another proposal to impose the same HIPAA civil and criminal penalties on regulated providers for noncompliance with Part 2 regulations. Continue Reading HHS proposes update to Part 2 confidentiality regulations to align with HIPAA

The Office for Civil Rights (“OCR”) at the U.S. Department of Health and Human Services (“HHS”) recently issued a bulletin highlighting the application of Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) to covered entities and business associates (“Regulated Entities”) under the HIPAA Privacy, Security, and Breach Notification Rules (“HIPAA Rules”) when using online tracking technologies that collect and analyze information about how internet users interact with websites or mobile applications (“Tracking Technologies”). While the Bulletin emphasizes that Regulated Entities have always been prohibited from impermissible uses and disclosures of protected health information (“PHI”) collected through Tracking Technologies, including disclosing PHI to Tracking Technology vendors without entering into business associate agreements (“BAAs”), OCR has been relatively silent on this issue to date.

To highlight the application of HIPAA to Regulated Entities leveraging Tracking Technologies, the Bulletin provides several examples of how Tracking Technologies may collect and share PHI, including on authenticated and unauthenticated webpages, as well as mobile apps. In particular, the Bulletin describes how websites and mobile apps commonly use Tracking Technologies to collect information from users, including identifiers that are unique to users’ mobile devices. This information can then be used by the owner of a website or app, a related vendor, or a third party to gain insights about users’ online activities and to create a unique profile for each user. These insights and information can be used in beneficial ways to help improve care or the patient experience, but they can also be misused to promote misinformation and for other detrimental purposes.

In a nutshell, OCR’s Bulletin stresses that when an individual uses Regulated Entities’ websites or mobile apps, information such as the individual’s medical record number, home or email address, dates of appointments, IP address, geographic location, or medical device ID may constitute PHI subject to HIPAA and should be held by Regulated Entities accordingly. According to OCR, such information generally is PHI, even if the individual does not have an existing relationship with the Regulated Entity and even if the information does not include specific treatment or billing information like dates and types of health care services. Per OCR, this is because the information connects the individual to the Regulated Entity (i.e., it is indicative that the individual has received or will receive health care services or benefits from the covered entity), and thus relates to the individual’s past, present, or future health or health care or payment for careContinue Reading HHS OCR Issues Bulletin on HIPAA Compliance for Tracking Technologies 

On June 29, 2022, the U.S. Department of Health & Human Services’ Office for Civil Rights (“OCR”) issued two pieces of guidance clarifying the applicability of the Health Insurance Portability and Accountability Act (“HIPAA”) related to privacy of information connected to an individual’s reproductive health. 

Through this guidance, HIPAA addresses both protected health information (“PHI”), which is subject to HIPAA’s rules, as well as general, personal information that is not directly protected by HIPAA.Continue Reading New Guidance by OCR addresses HIPAA and Disclosures of Information relating to Reproductive Health

According to the Centers for Disease Control and Prevention, firearm injuries are a serious public health problem in the United States. To combat this problem, many states have passed extreme risk protection order (“ERPO”) laws, otherwise known as “red flag laws.”

ERPO laws allow various individuals, including family members, health care providers, and law enforcement…

The Office for Civil Rights (OCR) is requesting public input on reforms to Health Insurance Portability and Accountability Act (HIPAA) privacy and security rules to promote care coordination and the health system’s transformation to value-based health care while protecting the privacy and security of individuals’ protected health information (PHI).  Specifically, in a request for information…

This month the HHS Office for Civil Rights (OCR) has launched an initiative “to more widely investigate the root causes” of HIPAA breaches affecting fewer than 500 individuals, according to an August 18, 2016 OCR email announcement. While Regional Offices will retain discretion to prioritize investigation of smaller breaches, each office is directed to “increase…

Immediately following Sunday’s tragic shooting at a nightclub in Orlando, friends and family frantically gathered at Orlando Regional Medical Center, attempting to get information about their loved ones.  However, hospital officials hesitated to provide specific updates.  Why?  Because the Health Insurance Portability and Accountability Act (HIPAA) and implementing regulations restrict the patient-identifiable health information that “covered entities,” like Orlando Regional Medical Center, are permitted to disclose without proper patient authorization or consent.

Shortly following the massacre, Orlando local news outlets reported that after Orlando Regional’s CEO expressed concern regarding families requesting detailed patient health information at the hospital’s emergency room, Orlando Mayor Buddy Dyer contacted the White House and requested a waiver of the HIPAA regulations.  While the HIPAA Privacy Rule is not automatically suspended during a national or public health emergency, the Secretary of the Department of Health and Human Services (HHS) may waive certain provisions of HIPAA under the Project Bioshield Act of 2004 (PL 108-276) and section 1135(b)(7) of the Social Security Act.  In order to take advantage of the waiver, the President must declare an emergency or disaster and the Secretary of HHS must declare a public health emergency.Continue Reading Reexamining HIPAA’s Applicability During Emergencies After the Tragedy in Orlando

On January 6, 2016, HHS published a final rule to modify the HIPAA Privacy Rule to expressly permit certain HIPAA covered entities to disclose to the National Instant Criminal Background Check System (NICS) the identities of individuals who are subject to a federal “mental health prohibitor” that disqualifies them from shipping, transporting, possessing, or receiving…

The Office of the National Coordinator for Health Information Technology (ONC) has released a revised Guide to Privacy and Security of Electronic Health Information. The guide is intended to help health care providers – especially those from smaller organizations – address federal health information privacy and security requirements in their practices. The new version…

Two more health care companies have settled potential violations of the HIPAA Privacy and Security Rules arising from the theft of unencrypted laptops by paying a total of almost $2 million and agreeing to continued oversight by the HHS Office for Civil Rights (OCR). In both instances, the breaches were self-reported and the settlements resulted…

HHS has developed a Security Risk Assessment (SRA) tool to help providers comply with a Health Insurance Portability and Accountability Act (HIPAA) requirement that covered entities conduct a risk assessment to ensure compliance with HIPAA’s administrative, physical, and technical safeguards and to determine where electronic protected health information could be at risk. The SRA tool is…