HIPAA & Health Information
In Dobbs v. Jackson Women’s Health Organization (Dobbs), the US Supreme Court ruled that abortion is not a fundamental right protected by the Constitution. This decision resulted in additional abortion protections in California, Michigan, and Vermont, and prompted many patients, providers, regulators, and tech companies to rethink data privacy. However, because most abortions are still banned in at least 13 states, this patchwork of state abortion laws, combined with the lack of any sufficient national privacy law, puts patient privacy at risk.
On June 24, 2022, the Supreme Court finally handed down its long-awaited opinion in Dobbs v. Jackson Women’s Health Organization. In this decision, the Court set aside nearly 50 years of precedent and unequivocally overruled Roe v. Wade, declaring that there is no Constitutional right to abortion. This decision will unsurprisingly change laws and significantly impact millions of people across the country. Although pro-choice activists have been bracing for this outcome and mobilizing to maintain access to abortions, they have to contend with a consideration that did not exist to the same magnitude the last time that abortion was illegal in the US: anti-abortion laws’ impact on data privacy.
Cyberattacks on the healthcare industry have reached a fever pitch. In 2020 alone, there was a drastic increase in healthcare organization cybersecurity breaches. In 2021, the average cost of a healthcare data breach increased by over $2 million to $9.23 million. Healthcare providers continue to be the most targeted industry for cybersecurity breaches, with over ninety-three percent of healthcare organizations experiencing a data breach over the past three years. 306 breaches of unsecured protected health information (“PHI”) impacting 500 or more individuals were reported to the U.S. Department of Health and Human Services (“HHS”) in 2020. Yet healthcare organizations continue to be ill-equipped to handle this growing problem.
The Federal Bureau of Investigation (“FBI”), the Department of Health and Human Services (“HHS”), and the Department of Homeland Security Cybersecurity and Infrastructure Security Agency (“CISA”) recently announced that hackers have been and will continue to target the United States hospitals and health-care providers. These attacks are cyber in nature and often lead to ransomware attacks, data left, and inevitable disruption of health care services when patient information is locked until the ransom can be paid.
Cook County General Administrative Order 18-1 pertains to the Standard HIPAA Qualified Protective Orders (QPO) that will be permitted in Cook County. These orders will only be allowed for cases that are in litigation where the Plaintiff and Plaintiff’s counsel authorize disclosure of a litigants’ protected health information (PHI). It also requires all entities who received PHI to either return the documents to the Plaintiff or destroy them at the end of the case. These changes mean that Plaintiff’s attorneys will see a change in the handling of Plaintiff’s medical records and other documents covered under the QPO containing PHI.
In March 2019, Rush University Medical Center (“Rush University”) sent out breach notification letters to approximately 45,000 patients. The letter advises patients that a privacy incident occurred that may have involved the patients’ personal information. The privacy incident was caused by an employee of a third-party financial services vendor. The employee released a file that contained patient information to an unauthorized person. According to the breach notification letter, law enforcement and regulatory officials were involved in the investigation of the privacy incident. Rush University sent the breach notification letter in compliance with the Health Insurance Portability and Accountability Act’s privacy and security rules.
Protected Health Information is seeing a surge of breaches on the cyber security front due to contractor error. It’s also impacting the most consumers in comparison to other data breaches and, in some cases, has the power to cause chaos in national infrastructure. Advances in technology and compliance measures can stem the tide and protect the most valuable information in consumers lives.
In a time when data breaches occur fairly frequently, whether it’s credit card information being stolen from department stores or a credit reporting bureau breach affecting hundreds of millions of customers, keeping personal information private seems to get harder every day. That fact may give patients pause when they are asked to sign up for an electronic health record account. A 2017 survey listed electronic health record management as one of patients top concerns. Changes in recent years have led to changes in compliance measures that make electronic health records security an added benefit to patients and ensure the continued increase of their adoption.
The EU General Data Protection Regulation (“GDPR”) is now in effect as of May 25, 2018, and has been a prominent topic of international debate across multiple sectors as companies look to adjust to new stringent regulations in data management. With a wide scope (the GDPR now applies to all organizations possessing personal data of individuals based in the EU) and steep penalties for companies that fail to comply, companies across the globe are spending millions of dollars in preparation.
It happens in every emergency department: a law enforcement officer comes into the ER at two o’clock in the morning and demands to test the blood alcohol levels of a patient brought in after an auto accident. The officer pulls an exhausted nurse to the side in the hopes that the nurse will forget his or her training, or become anxious enough to give up the information for fear of being arrested. Yet no matter the specific facts, the question remains: can a hospital give law enforcement officers a patient’s PHI without authorization from the patient? In some situations, is it even required?
There is a provision under the HIPAA Privacy Rule that allows, and in some cases, requires, entities to disclose patient’s PHI to law enforcement without the patient’s authorization. However, state law can complicate this picture with more restrictive regulations and guidance.