Moving Forward after Privacy Shield’s Invalidation

Moving Forward after Privacy Shield’s Invalidation

by | Jul 27, 2020 | , ,

On July 16, the Court of Justice of the European Union (“CJEU”) invalidated the Privacy Shield, one of the primary mechanisms used by companies to lawfully transfer personal data outside of the European Union under the GDPR. Despite a prior adequacy determination in 2016, the CJEU found that shortcomings in the Privacy Shield, particularly U.S. security and surveillance laws and an ineffective Ombudsperson program, resulted in a failure to provide essentially equivalent protections to those afforded to individuals within the European Union.

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Looks Like the FTC Is Ramping up for Enforcement of Health Apps

Looks Like the FTC Is Ramping up for Enforcement of Health Apps

by | Jul 24, 2020 | , ,

This past Tuesday the FTC hosted its 5th annual PrivacyCon. It was a GREAT event!  The full-day event covered a wide-range of cutting edge and titillating issues concerning the privacy of data in this day and age of rapidly accelerating technology.  However, it was the morning session which covered Health Apps that interested me the most. In his opening remarks, the Director of FTC’s Bureau of Consumer Protection, Andrew Smith, came out-of-the-gate pointing out that earlier this year HHS issued rules that will make it easier for consumers to access their medical records through the app of their choice, and while this expanded access to health information can be an enormous benefit to consumers – wherever data flow opportunities increase, the opportunities for data compromise increase as well. Director Smith concluded his opening remarks by stating “We at the FTC will not hesitate to take action when companies misrepresent what they are doing with consumers’ health information or otherwise put health data at undue risk . . .” Here is what I learned from the four-person panel of experts who discussed the ins-and-outs of Health Apps and potential direction of the FTC will take with enforcement.

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You Should Know Your Affirmative Defenses if OCR Investigates You for HIPAA Violations

You Should Know Your Affirmative Defenses if OCR Investigates You for HIPAA Violations

by | Jul 9, 2020 | ,

The HIPAA Enforcement Rule prevents the Secretary/OCR from assessing civil monetary penalties (CMP) against a covered entity or business associate if an Affirmative Defense can be established. A HIPAA violation that is corrected within 30 days of discovery can potentially insulate an organization from CMPs, provided certain requirements are met. But an organization has to make sure that it fits squarely within the requirements of these regulatory defenses to be fully insulated.

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Don’t Make the Mistake of Over-Reporting Data Breaches Under HIPAA

Don’t Make the Mistake of Over-Reporting Data Breaches Under HIPAA

by | May 11, 2020 | , ,

Evaluating incidents that affect protected health information (PHI) to determine whether they must be reported under HIPAA’s Breach Notification Rule is a delicate balancing act.  On the one hand, a HIPAA covered entity will want to avoid reporting an incident to the Secretary of HHS if it is not required to do so under the standards set forth in HIPAA’s Breach Notification Rule. On the other hand, a HIPAA covered entity that fails to report a HIPAA Breach risks being exposed to penalties from OCR for each day such Breach was not reported when it should have been. A recent Becker’s Health IT article brought attention to a Notice posted by Ann & Robert H. Lurie Children’s Hospital of Chicago

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