Healthcare Privacy Practices Notice Must Include Nondiscrimination Notice

By Margaret Young Levi and Kathie McDonald-McClureprivacy policy

Among the many mandates of the Affordable Care Act (ACA) (a/k/a “Obama Care”) still in force today is Section 1557. Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities. The U.S. Department of Health & Human Services (HHS) Office for Civil Rights (OCR) is the agency vested with responsibility for implementing and enforcing Section 1557. On May 16, 2016, OCR issued a Final Rule that requires entities covered by the ACA to notify beneficiaries, enrollees, applicants, or members of the public of Section 1557’s nondiscrimination prohibitions. This notice must be included in the entity’s “significant” publications and communications.

You might ask, “Why am I reading about this on a legal blog about privacy and security?”  This is because OCR determined that the Notice of Privacy Practices, which healthcare providers and health plans issue to patients and plan members, is a “significant” publication or communication. As a result, health care providers and health plans that are subject to both Section 1557 and the Privacy Rule under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) must add the Section 1557 nondiscrimination notices and taglines to their Notice of Privacy Practices. Health plans should add such notices and taglines to their Summary of Benefits and Coverage as well.

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Ransomware Attack on Allscripts’ Cloud-Based EHR and E-Prescribing Platforms: What Providers Need to Know

pexels-photo-263370.jpegBy Kathie McDonald-McClure

What Happened. According to several healthcare news sources, on Thursday, January 18, 2018, Allscripts experienced a ransomware attack on the computer servers that host the Allscripts cloud-based EHR and the Allscripts cloud-based Electronic Prescriptions for Controlled Substances (“EPCS”) platform. Allscripts did not pay the ransom because it had recent data backups that were unaffected by the attack.¹

Initial Impact on Allscripts’ Clients. The EPCS reportedly was restored on Saturday, January 20, 2018. The EHR system reportedly continued to be adversely affected through at least Monday, January 22, 2018, with some providers still reporting log-in issues through Wednesday, January 24, 2018. Allscripts held a conference call with providers in which it advised providers that they may continue to experience usage interruptions with the cloud-based products until Allscripts completed a roll-out of security updates. During down times, Allscripts urged providers to use the Allscripts mobile solution (only available on the iPhone) to view medical histories and schedules but acknowledged that providers would be unable to Continue reading

Can blockchain technology solve healthcare IT security and interoperability challenges?

On March 20-21, 2017, multiple healthcare technology companies came together in Washington, D.C. to host The Healthcare Blockchain Summit.  Blockchain, the technology that underpins bitcoin technology, keeps data secure in a “distributed, encrypted ledger” while allowing control over who can access that ledger.  This is the hottest technology being discussed today as a way to secure confidential or sensitive data.

The on-line technology publication, Wired, describes blockchain’s security method in a February 1, 2017 article as follows: “Rather than having one central administrator that acts as a gatekeeper to data—a list of digital transactions—there’s one shared ledger, but it’s spread across a Continue reading

OCR Settlement a Message to Providers: Every Day Counts to Notify Affected Persons After a HIPAA Data Breach

The U.S. Department of Health & Human Services, Office of Civil Rights (OCR) entered into a settlement with Presence Health Network relating to its failure to provide timely notification of a breach of unsecured protected health information under the Health Insurance Portability & Accountability Act (HIPAA). OCR data breach settlements typically concern a covered entity’s failure to properly secure protected health information; this marks the first settlement involving a provider’s failure to report a data breach in a timely manner.

Under the HIPAA Breach Notification Rules, covered entities must provide notification of a breach without unreasonable delay and in no case later than 60 days following the discovery of a breach to affected individuals, and, in breaches affecting more than 500 individuals, to OCR and the media.

Presence Health is a not-for-profit health system serving 150 locations in Illinois. Presence Health first discovered that some paper copies of its surgery schedules at one location were missing on October 22, 2013, and these documents contained the protected health information of 836 individuals. The information consisted of the Continue reading

LabMD Appeals; Court Grants Temporary Stay

lab_specimensIn a recent blog post entitled “FTC Issues Final Order and Data Security Lessons in LabMD Case,” we discussed the Federal Trade Commission (“FTC”)’s Final Order in the LabMD case.  The FTC found that LabMD failed to provide reasonable and appropriate security for its customers’ personal information and that this failure caused (or was likely to cause) substantial consumer harm constituting an unfair act in violation of the law.  It  ordered LabMD to implement a number of compliance measures, including creating a comprehensive information security program, undergoing professional routine assessments of that program, providing notice to any possible affected individual and health insurance company, and setting up a toll-free hotline for any affected individual to call.  Although LabMD has closed its doors and has limited resources to comply with the FTC’s Final Order, it appealed the Final Order to the U.S. Court of Appeals for the Eleventh Circuit.  At the same time, it sought a stay from the FTC, which would halt these compliance measures pending the court’s review. The FTC denied the stay, so LabMD then asked the Eleventh Circuit to grant the stay.

On November 10, 2016, the Eleventh Circuit granted LabMD’s motion to stay enforcement of the Final Order pending appeal.  A copy of the court’s Order granting the stay is available here.  When issuing the stay, the court found that there existed a serious legal question as to Continue reading