The Federal Trade Commission’s Health Breach Notification Rule (HBNR) is a perfect example of a narrowly tailored regulation that only contributes to the cumbersome patchwork of privacy rules in this country without providing any real benefit. In this blog post, I explore the problems with the HBNR and why we should focus instead on creating meaningful, comprehensive privacy legislation.
Category Archives: HIPAA
It’s now a familiar scene. News coverage regularly includes video footage capturing exhausted healthcare workers, lifeless bodies in hospital beds and COVID-19 treatment areas. OCR reminds healthcare providers that allowing media access to patient care areas without patient authorization violates HIPAA, regardless of the COVID-19 public health emergency. In the past, hospitals have paid millions of dollars in settlements for permitting access without proper authorization and increased enforcement on this issue may be on the horizon.
In line with its other Notices of Enforcement Discretion, OCR announced today that it will not enforce HIPAA rules against healthcare providers and their business associates for HIPAA violations that occur during the good faith operation of a community-based COVID-19 specimen collection and testing site, such as a mobile, drive-through or walk-up site.
The CARES Act made important changes to 42 CFR Part 2 rules by aligning use and disclosure rules more closely with HIPAA. This is an important development and will require some operational tweaks by Part 2 Providers such as obtaining initial consent and ensuring the use of a Notice of Privacy Practices.
Late Friday, the Office for Civil Rights (OCR) issued FAQs on telehealth and HIPAA as a follow up to DHHS’ announcement that OCR would use “enforcement discretion” for HIPAA non-compliance related to the good faith roll out of telehealth services during the COVID-19 emergency. The FAQs provide useful information about the types of applications that can be used for telehealth as well as examples of bad faith conduct.
By executive order late yesterday, Governor Ned Lamont expanded permission to offer “audio-only” telehealth services to commercial insurer’s in-network providers furnishing covered telehealth services. Two days ago, the Governor granted this permission to Medicaid providers serving Medicaid beneficiaries. The Executive Order also addresses licensure and location requirements and conditions for other providers wishing to offer telehealth services. Additionally, the order assures providers that compliance with federal agency guidance on HIPAA is adequate to meet state law.
Just one week ago, Medicaid in Connecticut did not cover telehealth services. Then, DSS issued Provider Bulletins 2020-09 and 2020-10 providing for emergency temporary telehealth coverage in response to the Covid-19 pandemic. Today, the Connecticut Department of Social Services (DSS) issued Provider Bulletin 2020-14, which further expands Medicaid reimbursement to include telehealth delivered via telephone.
Today, the Department of Health and Human Services announced that its Office for Civil Rights, which enforces HIPAA, will not enforce requirements that are a barrier to making telehealth services available.
DHHS announced waivers of various compliance requirements for providers to ease administrative and operational burdens during this pandemic. I think the theme here is that providers just need to do the best that they can during these challenging times. Those that prioritize patient care, act reasonably and in good faith and do not commit fraud or abuse will be spared from enforcement actions.
Lessons from the first enforcement action of 2020: (1) No covered entity is immune from HIPAA enforcement. (2) Craft factual breach reports that leave no unanswered questions and do not unnecessarily grab OCR’s attention.