As an update to our previous post, HHS announced that the deadline to submit comments on their proposed rule to revise HIPAA regulations was extended until May 6, 2021. Changes contemplated by the proposed rule involve relaxing certain privacy standards, strengthening individuals’ rights to access their protected health information (PHI) and other initiatives that
The Year to Come in U.S. Privacy & Cybersecurity Law (2021)
On January 28, 2021, privacy professionals around the world will celebrate Data Privacy Day. This year, we decided to mark the occasion by gathering our team’s thoughts and expectations on what we expect to be the biggest privacy law stories in 2021 and beyond.
Last year we wrote a similar article, attempting to predict how the privacy landscape would unfold in 2020. We got some things right (e.g., the emergence of CCPA 2.0). But, let’s be honest, in March everything changed, including privacy law. As spring turned into summer our writing focused on the privacy law implications of COVID-19, including contact tracing, no contact temperature taking, and the unanticipated collection of heath information, among other unexpected topics. We also took note of developments overseas, including the Court of Justice of the European Union’s Schrems II decision and the emergence of Brazil’s federal privacy law, LGPD.
If there was one takeaway from 2020 from a privacy law perspective it was this – while it is impossible to predict its path, privacy law is rapidly growing and evolving, almost on a daily basis, and in nearly every corner of the world. With that, we turn to our 2021 predictions.…
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Relaxing Privacy Requirements? Department of Health and Human Services Proposes Changes to HIPAA
On December 10, 2020, the U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR) released a proposed rule that would revise the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
In its news release, OCR noted that the changes “seeks to promote value-based health care by examining federal regulations that impede efforts among healthcare providers and health plans to better coordinate care for patients.” The proposed changes come on the heels of the recently delayed Information Blocking Rule, which seeks to prohibit interferences with access, exchange, or use of electronic health information (EHI). The key proposed changes are discussed below.…
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U.S. Privacy Law Implications for Employers Considering Employee Contact-Tracing Apps
Keypoint: If properly deployed, the use of COVID-19 contact-tracing apps by employers, in combination with other measures, could be an effective way to return employees to the workforce. However, before deploying these apps, employers should take caution to fully vet the technologies being used to ensure that employee privacy is respected.
As the United States and Europe have started the process of returning to work, the development, deployment, and use of COVID-19 contact-tracing apps has become a focal point for how governments intend to mitigate risk. China, Singapore, and South Korea have already implemented national contact-tracing apps. European countries and Australia have been rapidly working towards their deployment.
In connection with the rapid development of governmental contact-tracing apps, tech companies have started to develop similar apps for employers. A handful of employer-focused contact-tracing apps are already on the market and many more are in development. Some employers are already planning to deploy these apps. For example, Ferrari recently announced that it will utilize a contact-tracing app as part of its “Back on Track” plan.
The use of these apps raises numerous privacy concerns for U.S. employers. As employers begin to vet these apps, they will need to ensure that they do not unintentionally violate privacy laws or assume liabilities by deploying them with their workforce.…
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OCR Relaxes HIPAA Rules for COVID-19 Community-Based Testing Sites
The U.S. Department of Health & Human Services Office of Civil Rights (OCR) announced that it will refrain from imposing penalties for violations of HIPAA for covered entities or business associates participating, in good faith, in the operation of COVID-19 Community-Based Testing Sites during the nationwide public health emergency. The notice related to the relaxation…
CARES Act Changes to Federal Substance Use Privacy Law
Section 3221 of the CARES Act ratified fundamental changes to the Public Health Service Act requiring HHS to revise 42 C.F.R. Part 2, regulations within 12 months. The changes are significant and follow the increasing movement to align the rules that govern the confidentiality requirements of substance use disorder records with HIPAA. Our health law…
OCR Provides Guidance Related to COVID-19 PHI Disclosures
The Department of Health and Human Services, Office of Civil Rights (OCR) recently released guidance and helpful examples illustrating how Covered Entities can comply with HIPAA and the Privacy Rule and still disclose protected health information (PHI) about individuals infected with or exposed to COVID-19 to Essential Providers. Read the full post on our Healthcare…
OCR Releases FAQ: Update to March 17 Telehealth Waiver Announcement
On March 20, 2020 OCR released a Frequently Asked Questions list to help further clarify its March 17th Waiver. In the FAQ, OCR clarifies that the waiver not only allows providers to utilize platforms that do not comply with the requirements of the Security Rule (discussed in our original post), but it also applies to the Breach Notification and Privacy Rules that may be implicated when using a less secure platform. OCR also assures providers that if protected health information is intercepted and during the the “good faith provision of telehealth,” OCR will not pursue otherwise applicable penalties.
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OCR to Waive Penalties for Telehealth Using Popular Communication Applications
On March 17, 2019, the Department of Health and Human Services, Office of Civil Rights (OCR) announced that it will exercise its enforcement discretion and waive potential penalties for HIPAA violations against healthcare providers that see patients through non-public communication applications during the COVID-19 nationwide public health emergency.
Background on Security Requirements for Telemedicine providers
Under what is commonly referred to as the HIPAA “Security Rule,” CMS requires organizations to have certain safeguards in place to protect patients’ health information. These safeguards require organizations to comply with certain minimum technical and organizational requirements. Part of the technical requirements is that organizations must have security measures in place “to guard against unauthorized access to electronic protected health information that is being transmitted over an electronic communications network.” This requires providers to utilize telehealth platforms that have, at a minimum, certain encryption and integrity controls in place. Furthermore, as an organizational safeguard, the Security Rule requires that telehealth providers enter into Business Associate Agreements with these platforms to ensure the platform will comply with HIPAA and protect patients’ health information.…
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Need a Lift? Uber Enters the Healthcare Arena
Earlier this month, Uber released its new program, Uber Health. In a nutshell, Uber Health is a program that facilitates patient transportation to and from appointments with healthcare providers. According to Uber, Uber Health works like this:
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