[ Tuesday, March 20, 2018 ]
Which will leave South Dakota: Alabama
Jeff [1:35 PM]
is about to be the 49th state with a data breach reporting statute.
[ Thursday, March 08, 2018 ]
Not slowing down:
Jeff [4:56 PM]
The seeming slowdown of OCR prosecutions of HIPAA breaches is just that: seeming. At least that's what OCR is saying
Jeff [4:54 PM]
the NY insurer conducted a mailing that exposed beneficiaries' social security numbers, and were fined $575,000. Not by OCR, but by the NY Attorney General. EmblemHealth has not been punished by OCR (at least not yet). What to make of this? Kirk Nahra has some thoughts.
[ Tuesday, March 06, 2018 ]
Forecast for HIPAA Enforcement in 2018:
Jeff [10:10 AM]
a little bit of navel-gazing
by David P. Saunders of Jenner & Block. I don't disagree, but however you slice it, the sample size is just too small. One thing that won't change -- the size of the fines: they'll still stay huge, at least for entities that can afford them (that's my prediction, for what it's worth).
[ Friday, March 02, 2018 ]
Aetna HIV Mailing Case (and the missing BAA):
Jeff [1:15 PM]
I was just reviewing the complaint
in the countersuit filed by the mail service vendor, KCC, against Aetna (in preparation for my HIPAA breach presentation at the UT Health Law Conference in Houston April 6-8 [y'all come; tell me you read this, and I'll buy you a drink!]), and found something interesting on page 15. As you may recall, Aetna hired KCC to send a mailing to a bunch of HIV patients, and the letters went out in "window" envelopes, so that some of the print on the content of the letters (presumably the patient name and address) shows through the celophane window. However, the mailing was poorly configured because instead of simply the patient name and address showing, information relating to the patient's HIV status also showed through. Well, it looks like Aetna did NOT
have a BAA in place with KCC.
That could be huge.
[ Monday, February 26, 2018 ]
Good: Hospital terminates snooping employees
Jeff [8:03 AM]
. The best way to keep employees from snooping and otherwise violating HIPAA is to make an object lesson out of those who get caught. Insidious little transgressions tend not to be repeated if it's known that you'll get fired for it.
[ Wednesday, February 14, 2018 ]
Jeff [1:10 PM]
a bankrupt company
can still be stuck with a HIPAA fine, as Filefax found out.
[ Thursday, February 08, 2018 ]
Aetna HIV mailings:
Jeff [1:13 PM]
When the sh*t hits the fan, it splatters everywhere
. Aetna agreed to about $20 million in fines and damages, sued its claims administrator KCC, who in turn counterclaimed against Aetna, claiming that Aetna's attorneys, Gibson Dunn & Crutcher, bear responsibility too.
[ Friday, February 02, 2018 ]
HIPAA and Law Enforcement:
Jeff [11:07 AM]
I recently recorded a webinar
on the impact of HIPAA on police efforts to obtain medical information. HIPAA doesn't prevent the administration of justice or prohibit the police from doing their job, but it does set out parameters and rules. It's wise for both the law enforcement community and the medical community to be aware of those rules.
If you click on the link
to register, I think you get a 50% discount.
[ Thursday, February 01, 2018 ]
Jeff [1:44 PM]
The dialysis provider had a bad year in 2012: 5 different data breaches from lost or stolen computers and hard drives. What links 5 separate breaches? Bad risk analysis, naturally. The result? A $3.5 million fine
. And think, barely 500 individuals were affected. Could've been a lot worse
[ Tuesday, January 30, 2018 ]
Jeff [10:07 PM]
So, after a weekend of DissentDoe and me talking about how a ransomware attack should not be automatically considered a reportable breach, OCR releases a Cyber Extortion Newsletter
, and doesn't repeat that ransomware is presumably a breach. Maybe they've been listening. . . .
[ Monday, January 29, 2018 ]
Jeff [2:15 PM]
[ Friday, January 26, 2018 ]
Allscripts Ransomware Update:
Jeff [12:57 PM]
Now, a class action lawsuit
has been filed. This class action might actually hold water -- Allscripts' 1,500 customers apparently did suffer delays and business interruptions, for which actual damages might be fairly easily provable. In most breach class action cases, most members of the "class" can't show any actual monetary damages: if nobody steals your identity or ruins your credit, even though they might have tried or had the ability to do so, you've got no damages. It's hard to maintain a class action if you can't show damages across the whole class of plaintiffs.
The damages in the Allscripts case might, though, be "consequential," rather than direct. If so, then the Allscripts customer contract might contain a liability limitation that would keep those damages from being recoverable. But that's all just guesswork on my part.
[ Friday, January 19, 2018 ]
Jeff [12:33 PM]
This time a bigger target (Allscripts)
, but apparently not a big impact. Presumably that's because Allscripts was prepared for it.
Take this as a reminder: if you haven't prepared for a ransomware attack, be prepared to be asked why if it happens and you suffer a HIPAA breach. At this point, the possibility of a ransomware attack should be part of your risk analysis.
[ Wednesday, January 17, 2018 ]
Your 2018 Privacy and Security "To Do" List:
Jeff [4:57 PM]
This is a great little checklist
from Kirk Nahra at Wiley Rein. There will be few if any businesses that will have to address each item on this list, but virtually every business will have to deal with at least one of them. And pay particular attention to the passages in italics, which are most important and nearly universal.
Jeff [1:42 PM]
[ Monday, January 15, 2018 ]
Ransomware in Indiana: Hancock Regional Hospital
Jeff [2:27 PM]
in Indiana was hit by encryption ransomware. No word yet on how they are recovering, or what the ransom amount was (the didn't pay, so presumably they were able to recover from backups). More here
UPDATE: Apparently, they did pay: $55,000
Jeff [2:23 PM]
Oklahoma State's Center for Health Sciences in Tulsa got hacked,
resulting in about 280,000 names and a limited amount of other information. Not likely a big risk to those involved.
[ Friday, January 12, 2018 ]
Coplin Health (West Virginia): Another stolen laptop, another breach notification
Jeff [1:34 PM]
to 43,000 patients. They don't even know if the laptop had any PHI on it (it might not have). And it was password protected, reducing the likelihood of harm even further. BUT, it was not encrypted. Hence the report and the bad publicity.
Jeff [10:45 AM]
The CT Supreme Court has established, for the first time in the state, a physician's common law obligation to protect the confidentiality of patient records
. Most states have either a common law right to confidentiality or a statutory one, but a lower court noted that neither had been established in Connecticut until now.
The case involves a HIPAA violation, and a patient's lawsuit against an Ob/Gyn practice for disclosing the patient's records to a probate court pursuant to a subpoena. HIPAA does allow disclosures of PHI under subpoena in certain circumstances, and it's not entirely clear here whether all of the HIPAA requirements were met; however, the plaintiff's claims for a HIPAA violation were immediately tossed out because there is no private cause of action for a HIPAA breach. In other words, even if a medical practice blatantly breaches HIPAA and discloses the patient's data, the patient cannot sue the medical practice for the HIPAA breach.
The patient can potentially sue the medical practice under some other grounds, specifically for failure to comply with state statutory or common law privacy obligations. In this case, the lower court correctly noted that there is no established privacy obligation in Connecticut; the supreme court, however, reset the table.
No, this isn't exactly right
. Connecticut citizens cannot sue for HIPAA breaches. They can sue for breach of confidentiality of medical records. There is overlap between those two things, but they are not contiguous or equal.
[ Wednesday, January 10, 2018 ]
Florida Medicaid Agency Data Breach:
Jeff [4:19 PM]
apparently someone at the Florida Medicaid
agency, the Florida Agency for Health Care Administration, got phished, and data for 30,000 Floridians was exposed.
New Privacy Officer at ONC: After a week or so of news highlighting how long the job has been vacant and whether it's even relevant any more, HHS' Office of the National Coordinator for Health IT has announced Kathryn Marchesini as their new Chief Privacy Officer.
Jeff [2:21 PM]
Costs of Producing Medical Records:
Jeff [1:04 PM]
A medical record document production company
has sued HHS to challenge its rules on the ability of a healthcare provider to charge patients for copies of their medical records. It will be interesting to see how this plays out.
Charles River Medical Associates (Massachusetts):
Jeff [9:11 AM]
This radiology group lost a hard drive
containing the bone density scan PHI of almost 10,000 people. Where'd it go? Who knows. Will the data fall into the wrong hands (and if it did, would it harm anyone)? Unlikely. Will CRMA get fined? Maybe (especially if, "upon further review," it becomes clear that the group didn't have good HIPAA policies and procedures and didn't do a good risk analysis). Would we even know about this if the drive was encrypted? Nope.
Folks, encrypt data at risk. Is it required? No. Then why should you do it? To save yourself a report and a fine, not to mention better protecting your patients' data. Aren't you here to serve them?
Am I asking too many questions?
[ Thursday, January 04, 2018 ]
EHR News: eClinicalWorks sued again:
Jeff [2:12 PM]
Another class action lawsuit
has been filed against EMR provider eClinicalWorks. This suit claims that eClinicalWork's EMR system fails to meet the requirements for "meaningful use." CMS pays providers such as medical practices and hospitals financial benefits if they adopt and implement electronic medical records and other technology in such a manner that the provider becomes a "meaningful user" of electronic medical record technology. The providers must attest to CMS that they have done the things necessary to meet the "meaningful use" standards. In this case, the providers claim that eClinicalWorks does not provide all of the necessary services to meet the "meaningful use" standard. eClinicalWorks paid a $155 million fine last year when the Department of Justice sued directly for its EMR shortcomings.
The earlier class action lawsuit claims that eClinicalWorks' EMR failed to accurately portray a patient's medical record, and the patient died because of the EMR's failure.
[ Wednesday, January 03, 2018 ]
SSM Employee Acting Badly:
Jeff [1:52 PM]
A customer service employee
at SSM Health accessed about 29,000 patient records, apparently looking for St. Louis-area patients who had narcotic prescriptions. Presumably, he's use those patient's data to get drugs him/herself, either for personal use or for resale. Clever, really. But obviously illegal.
[ Tuesday, January 02, 2018 ]
21st Century Oncology:
Jeff [10:57 AM]
An oncology practice with offices in 17 states and 7 Latin American countries has paid $2.3 million for HIPAA violations
. The FBI found their patient files on the dark web; apparently someone was able to access their SQL database remotely and extracted data on 2,213,597 patients, including social security numbers. Not sure if the breach was the cause, but 21st Century Oncology filed for bankruptcy back in May.
What's the actual HIPAA breach? Lack of a good risk assessment, failure to implement proper safeguards, no regular review of audit logs, and failure to have appropriate BAAs. The first and last are by far the most common causes of HIPAA breaches, and the 2nd and 3rd could have been prevented in the first had been done reasonably well.
When was your last serious risk assessment?
[ Friday, December 22, 2017 ]
Chilton (NJ) Medical Center:
Jeff [4:58 PM]
Employee steals hard drive
and sells it on the internet. 4,600 people impacted.
Banner (Arizona) Breach:
Jeff [4:56 PM]
You may recall a year and a half ago, Banner Health's Arizona facilities suffered a mostly-non-HIPAA data breach: specifically, hackers got into Banner's point-of-sale payment card processing system at its snack bars and cafeterias. The hackers eventually got into some Banner servers containing PHI. But it was really more a Home Depot type breach than an Anthem type breach.
A class action lawsuit was filed against Anthem, based on a handful of causes of action, including breach of contract by Banner for failing to provide protections of employee data as described in Banner's employee handbook. The class action judge has just thrown out several of those claims
, including the employee handbook claims. But she has let the class action continue of unjust enrichment (Banner didn't spend as much on data security as it should have, and that savings unjustly enriched Banner at the expense of the victims of the hack), negligence (Banner had a duty to protect the data, failed at that duty, and caused damages), and violation of Arizona's Consumer Fraud Act.
The judge did find that at least 2 plaintiffs did suffer damages that "would not have happened but-for" Banner's inadequate data security." However, the class-action plaintiffs are not out of the woods yet. Will all the class participants have similar damages? Are they all similarly situated? Is the heightened risk of identity theft actual harm, if the identity theft never occurs? I would guess we will have to have the Supreme Court determine that.
Some Good Breach News:
Jeff [3:35 PM]
The number of data breaches in the healthcare sector continued to rise in 2017 over prior years, but the number of records impacted fell
. Thus, fewer overall individuals were impacted, and fewer of the massive breaches we've seen in prior years.
[ Wednesday, December 13, 2017 ]
Jeff [7:22 AM]
The city had some sort of program providing services to citizens with HIV, and after the program terminated, the city shared information on 200 HIV patients with the University of Southern Maine to help determine if there were gaps in the way it provided the services, or if it could have operated the program better.
The city claims the data sharing did not violate HIPAA because it was for research purposes,
and it may be right, but probably only if USM had an independent review board determine that the university program had enough protections in place that patient authorization was not required.
Nevertheless, the city has apologized. Perhaps not illegal, but perhaps not a good idea either.
[ Monday, December 11, 2017 ]
Jeff [5:43 PM]
[ Thursday, December 07, 2017 ]
Henry Ford Hospital Breach:
Jeff [12:58 PM]
Someone apparently phished the email credentials
of multiple employees. No word yet on what was accessed or if any of it was used inappropriately.
An Unintended Consequence of Data Breach Reporting? Patients are more and more reluctant to share PHI with their own providers
Jeff [10:37 AM]
I've said many times that privacy exists on a continuum, particularly in regards to health information. On one end, you have perfect privacy, but that means no one (not your doctor, not your spouse, not your friends) has access to your health information. Obviously, the privacy is perfect, but you won't get healthcare unless you can do it yourself. At the other end is zero privacy: everyone knows every medical fact about everyone else. Here, you'd get great healthcare, since you could compare everyone's treatment experience to determine what would be best for you. And think of how far medical science could go with all that data.
At one end, great privacy and lousy healthcare; at the other, great healthcare but lousy privacy. I don't know about you, but I don't want to be at either end; I want to find the happy medium.
That's something healthcare regulators need to think about. Forcing the publicization of inconsequential breaches instills a false sense of risk and danger that is often more dangerous than the risk of harm from the breach itself.
[ Tuesday, December 05, 2017 ]
New from OCR: Five steps
Jeff [3:33 PM]
to prevent insider data breaches.
[ Tuesday, November 28, 2017 ]
Jeff [11:16 AM]
I'm not technologically knowledgeable to know if this is a big deal or not, but if you use OpenEMR, you should definitely have your IT staff take a look at whether this alleged vulnerability
might affect you.
[ Sunday, November 26, 2017 ]
Are Changes Coming to the Wall of Shame?
Jeff [11:24 AM]
HHS is considering
shortening the listing period, and might make other changes. The website is a required element of the HITECH Act, so they can't delete it entirely. But they could (and probably will) make some changes. In addition to shorter listings, perhaps only including listings where the reporting entity was at fault, or at least allow the entity to defend itself, would be useful improvements.
[ Wednesday, November 22, 2017 ]
Jeff [11:15 AM]
Thanksgiving is a good time to think about cybersecurity. Some great tips here
[ Thursday, November 02, 2017 ]
CyberThreat Information Sharing
Jeff [2:32 PM]
: HHS is publicly urging
healthcare industry participants to actively share cybersecurity threat information. Basically, they're urging healthcare players to utilize the benefits provided by CISA (the Cybersecurity Information Sharing Act of 2015) to allow threat information to be publicized across the industry, so players can respond and protect themselves and others. Not a bad idea at all.
[ Thursday, October 26, 2017 ]
Medical Device Cybersecurity:
Jeff [1:30 PM]
I tend to prefer an industry-driven approach
, like the House bill, over a top-down approach like the Senate bill.
[ Thursday, October 12, 2017 ]
Cloud-Based Blood Testing Information Breached: An Amazon cloud data repository
Jeff [12:04 PM]
for blood testing data managed by Patient Home Monitoring was not configured correctly, and a tech security company came across it. 300,000 PDFs accounting for about 150,000 people. Oops.
Using the cloud is OK, but only if you do it right. Be careful . . . .
[ Wednesday, September 27, 2017 ]
Jeff [12:45 PM]
Don't forget to vote for me for best "niche" legal blog. You can go vote here
Jeff [12:36 PM]
I'm not surprised, actually: This is a frightening headline: 73 Percent of Medical Professionals Share Passwords for EHR Access. If you're a medical resident, you used the attending's login information with the attending's consent.
So, it happens. A lot. But not a lot of bad comes out of it, since most (maybe virtually all) medical professionals do the right thing: access only what you need, access only for legitimate purposes, etc.
Still, even residents should have their own login information. You can't audit access if you have password sharing. And if something does go wrong, it could go very, very wrong, and it would be awfully difficult to fix post-facto.
Maybe it's really time for two-factor authentication in many more places.
[ Tuesday, September 26, 2017 ]
Nichey? Or Special?
Jeff [2:26 PM]
Some of my blog readers nominated me for the Best Legal Blog Contest in the "Niche and Specialty" Category. If you feel so inclined, you can go vote here
[ Monday, September 18, 2017 ]
PeaceHealth Data Breach
Jeff [11:47 AM]
: another "employees behaving badly
" breach. Over about 5-6 years, the employee accessed about 2000 records he/she had no need to access. No apparent social security skimming, so not likely to be ID theft. Reading between the lines, that probably means your garden variety snooping. Bad but not horrible. However, the big question is how it took almost 6 years to notice it.
[ Wednesday, September 06, 2017 ]
Nurses behaving badly.
Jeff [11:38 AM]
I guess "Mr. Big" died. This is mildly humorous, but somehow I think the reaction would be outrage if the victim were female instead of male.
H/T Ron Holtsford.
[ Thursday, August 31, 2017 ]
More Window Envelope issues: now it's CVS
Jeff [12:19 PM]
with a problem letting PHI leak out envelope windows.
[ Tuesday, August 29, 2017 ]
Aetna HIV data breach:
Jeff [2:57 PM]
Well, that was fast
. Those class action lawyers can outrun an ambulance.
[ Friday, August 25, 2017 ]
The Trouble with Window Envelopes:
Jeff [2:05 PM]
It's nice to use envelopes where the address of the recipient is only printed on the page inserted into the envelope, but is visible through a window in the outer envelope. It saves costs, as well as reduces the possibility of a mismatch between the information in the insert and the information on the envelope (i.e., the wrong letter gets inserted into the wrong envelope).
However, if you're going to do so, make sure ONLY THE NAME AND ADDRESS show through the window. I think Aetna's gonna be in trouble for this.
. . .
[ Wednesday, August 23, 2017 ]
Cybersecurity Class Action Update:
Jeff [6:17 PM]
One interesting aspect of data breaches (whether HIPAA-related or not) is the potential for lawsuits from affected parties. Most times, injured individuals can't show monetary damages from a HIPAA breach, and that particularly true in non-HIPAA breaches such as the Target or Home Depot data breaches, where any credit card fraud was covered by the credit card companies. (There are exceptions, of course, such as where a HIPAA breach causes harm that can be proven
). But the quest to show that the fear of future ID theft or other harm constitutes actionable damages is the holy grail of class action lawyers, looking to turn the millions of victims (each suffering only minor damages) into a single class so that they can collect on multiplied damages.
So far, it's been tough sledding: most courts deny that there are damages just because you're afraid someone might use your information in the future. That has been recently upheld in this ScottTrade case
. Some day, a court will allow these damages to constitute sufficient grounds for a class action lawsuit, but not yet.
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