Health Insurance Portability and Accountability Act (HIPAA)

A study shows that “92 percent of 36 mental health apps shared data with at least one third party — mostly services that help with marketing, advertising, or data analytics.”

“About half of those apps did not disclose that third-party data sharing, for a few different reasons: nine apps didn’t have a privacy policy at

“It is important that organizations have appropriate technical and organisational measures in place. This includes having clear data protection policies, taking a ‘data protection by design and default’ approach and continuing to review and monitor performance and adherence to data protection rules and regulations” – says Adam Stevens, Head of Intelligence at the UK Information

Elizabeth Litten (Fox Rothschild Partner and HIPAA Privacy & Security Officer) and Mark McCreary (Fox Rothschild Partner and Chief Privacy Officer) will be presenting at the New Jersey Chapter of the Healthcare Financial Management Association on August 30, 2017, from 12:00-1:00 pm eastern time. The presentation is titled: “Can’t Touch That: Best Practices for Health Care Workforce Training on Data Security and Information Privacy.”
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On July 23, 2017, Washington State will become the third state (after Illinois and Texas) to statutorily restrict the collection, storage and use of biometric data for commercial purposes. The Washington legislature explained its goal in enacting Washington’s new biometrics law:

The legislature intends to require a business that collects and can attribute biometric data

In one of the best examples we have ever seen that it pays to be HIPAA compliant (and can cost A LOT when you are not), the U.S. Department of Health and Human Services, Office for Civil Rights, issued the following press release about the above settlement. This is worth a quick read and some soul searching if your company has not been meeting its HIPAA requirements.
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Last week we posted about A Brief Primer on the NIST Cybersecurity Framework. Our partner and HIPAA/HITECH expert Elizabeth Litten took the NIST Cybersecurity Framework and created a blog post for the HIPAA, HITECH and Health Information Technology Blog on how How the NIST Cybersecurity Framework Can Help With HIPAA Compliance: 3 Tips. For those facing any HIPAA-related issues, it is a worthwhile read.
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I strongly urge every covered entity and business associate faced with a Business Associate Agreement that includes indemnification provisions to read Michael Kline’s “List of Considerations” before signing.  Michael’s list, included in an article he wrote that was recently published in the American Health Lawyers Association’s “AHLA Weekly” and available here, highlights practical and

Innovative health care-related technology and developing telemedicine products have the potential for dramatically changing the way in which health care is accessed. The Federation of State Medical Boards (FSMB) grappled with some of the complexities that arise as information is communicated electronically in connection with the provision of medical care and issued a Model Policy in April of 2014 to guide state medical boards in deciding how to regulate the practice of “telemedicine”, a definition likely to become outdated as quickly as the next technology or product is developed.

Interestingly, the development and use of medical devices and communication technology seems to outpace agency definitions and privacy laws as quickly as hackers outpace security controls. So how can we encourage innovation and adopt new models without throwing privacy out with the bathwater of the traditional, in-person patient-physician relationship? A first step is to see and understand the gaps in privacy protection and figure out how to they can be narrowed.

HIPAA does not protect all information, even when the information is clearly health information and a specific individual can be identified in connection with the health information. A guidance document issued jointly by the U.S. Department of Health and Human Services (HHS) and the Food and Drug Administration (FDA) on October 2, 2014 (FDA Guidance Document) contains the agencies’ “non-binding recommendations” to assist the medical device industry with cybersecurity. The FDA Guidance Document defines “cybersecurity” as “the process of preventing unauthorized access, modification, misuse or denial of use, or the unauthorized use of information that is stored, accessed, or transferred from a medical device to an external recipient.” If my medical device creates, receives, maintains, or transmits information related to my health status or condition, it’s likely I expect that information to be secure and private – but unless and until my doctor (or other covered entity or business associate) interfaces with it, it’s not protected health information (PHI) under HIPAA.

The FSMB’s Model Policy appropriately focused on the establishment of the physician-patient relationship. In general, HIPAA protects information created, received, maintained or transmitted in connection with that relationship. A medical device manufacturer, electronic health application developer, or personal health record vendor that is not a “health care provider” or other covered entity as defined under HIPAA, and is not providing services on behalf of a covered entity as a business associate, can collect or use health-related information from an individual without abiding by HIPAA’s privacy and security obligations. The device, health app, or health record may still be of great value to the individual, but the individual should recognize that the information it creates, receives, maintains or transmits is not HIPAA-protected until comes from or ends up with a HIPAA covered entity or business associate.

The FDA Guidance Document delineates a number of cybersecurity controls that manufacturers of FDA-regulated medical devices should develop, particularly if the device has the capability of connecting (wirelessly or hard-wired) to another device, the internet, or portable electronic media. Perhaps these controls will become standard features of medical devices, but they might also be useful to developers of other types of health-related products marketed to or purchased by consumers. In the meantime, though, it’s important to remember that your device is not your doctor, and HIPAA may not be protecting the health data created, received, maintained or transmitted by your medical device.
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As a regulatory lawyer, I frequently find myself parsing words and phrases crafted by legislators and agencies that, all too often, are frustratingly vague or contradictory when applied to a particular real-world and perhaps unanticipated (at the time of drafting) scenario.  So when an agency crafting guidance for a regulated industry has advisors on hand

Imagine you have completed your HIPAA risk assessment and implemented a robust privacy and security plan designed to meet each criteria of the Omnibus Rule. You think that, should you suffer a data breach involving protected health information as defined under HIPAA (PHI), you can show the Secretary of the Department of Health and Human