On May 8, 2017, the Eleventh Circuit Court of Appeals issued its opinion in the case of Silva v. Baptist Health South Florida, Inc. This decision is of importance to the health care industry as it establishes the standard under Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189 (“ADA”) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Rehab Act”) for the sufficiency of communication with hearing impaired persons in conjunction with the provision of medical services. Continue Reading →
Health Care Law
In a statement released on April 24, 2017, the U.S. Department of Health and Human Services, Office of Civil Rights (OCR), has shown once again the level of expectations that exist for covered entities and business associates. As discussed below, OCR has shown that it will not just limit its review to a particular alleged violation of the HIPAA Privacy and Security Rules but rather will take an enterprise wide view of the compliance efforts of covered entities and business associates. Continue Reading →
In a statement released on April 12, 2017, the U.S. Department of Health and Human Services, Office of Civil Rights (OCR), has shown that it expects covered entities of all sizes to adhere to the HIPAA privacy and security rules. While many of the fines levied by OCR in the past have involved large covered entities such as hospitals and health plans, OCR’s most recent enforcement action resulted in a $400,000 settlement to be paid by a federally qualified health center in Colorado. Continue Reading →
On January 31, 2017, the Supreme Court of Florida issued an opinion regarding the interplay of Amendment 7 (Art. X, § 25, Fla. Const.) and the Federal Patient Safety and Quality Improvement Act (42 U.S.C. §§ 299b-21 to 26) (“FPSQIA”). This decision is of extreme importance to the health care industry in Florida as it will significantly impact the peer review activities of hospitals and other health care providers within the state. Continue Reading →
Late in August of 2013 the Federal Trade Commission filed a complaint against medical testing company LabMD, Inc., alleging that the company failed to reasonably protect the security of consumers’ personal data, including medical information. In November of 2013, LabMD filed a Motion to Dismiss the complaint, arguing, among other things, that the FTC did not have the authority to regulate a private company’s data security practices as “unfair…acts or practices” under the FTC Act (15 U.S.C. §45(a)(1)). Included in LabMD’s argument was the contention that Congress, by enacting HIPAA, stripped the FTC of any authority that the FTCA over data security. The FTC Commissioners found LabMD’s arguments unpersuasive and in a January 16, 2014 order denied the Motion to Dismiss.
Health care providers and business associates should take heed that, while such enforcement has been rare, the FTC does have the authority to take action to protect consumers in data security matters that would normally be considered within the exclusive province of the Office of Civil Rights. HIPAA covered entities and business associates that handle patient information should remain vigilant in their efforts to maintain appropriate safeguards for patient information.
Board Certified in Health Law
On December 24, 2013 the HHS Office of Civil Rights (“OCR”) and Adult & Pediatric Dermatology, P.C., of Concord, Massachusetts entered into a Resolution Agreement whereby the practice agreed to settle potential violations of the HIPAA privacy and security rules. The potential violations of HIPAA resulted from the theft of an unencrypted thumb drive, containing the ePHI of approximately 2,200 patients, from the car of a practice employee.
Upon being notified of the breach the OCR conducted an investigation and determined that the practice had failed to conduct and accurate and thorough analysis of potential risks to ePHI in the care of the practice. The OCR further determined that the practice did not have adequate written policies and procedures and did not adequately train employees.
The Resolution Agreement entered into between the practice and the OCR requires the practice to make a $150,000.00 payment to the OCR as well as implement a corrective action plan. The Resolution Agreement is not an admission of liability by the practice.
A copy of the Resolution Agreement may be found at:
Physician practices should view this settlement as clear indication that OCR expects the compliance of all covered entities and not just large entities such as hospitals, universities and managed care entities. Physician practices that are not yet in compliance with the HIPAA privacy and security rules should take the appropriate steps to come into compliance.
In an order issued on September 25, 2013, Judge Robert Hinkle of the United States District Court for the Northern District of Florida has ruled that a 2013 legislative change to the presuit process for pursing a medical-negligence claim is preempted by HIPAA.
In 2013, the Florida legislature added a new requirement to Florida’s medical-negligence claim presuit process whereby an individual who was considering pursuing a malpractice claim against a health care provider would be required to sign an authorization that would allow the defendant or the defendants attorney to conduct ex parte interviews of the plaintiff’s other health care providers, limited to matters pertinent to the potential malpractice claim. The Court held, among other things, that the mandatory authorization requirement was contrary to both the judicial and administrative protections of HIPAA, which allow an individual to object to a disclosure of medical information, as well as the authorization of requirements of HIPAA. Speaking to the authorization issue, the Court stated that “An authorization signed under duress-a gun to the head, for example-is not valid.”
Case Information: Murphy v. Dulay, Case No.: 4:13cv378-RH/CAS Northern District of Florida
By: William Dillon, Board Certified in Health Law
Beginning on October 1, 2013, Floridians will have access to the Health Insurance Market Place that has been established as a result of the Affordable Care Act. Eligible consumers will be able to obtain information about available health insurance coverage options for them and their families. Unfortunately, there are those that would seek to take advantage of these consumers. Accordingly, the Office of the Inspector General for the Department of Health and Human Services has issued an alert, warning consumers of possible fraudulent scams that may be occurring in the market place. The Consumer Alert may be accessed via the following link:
By: William Dillon – Board Certified in Health Law
There have been barriers, real or perceived, which in some cases have prevented the timely exchange of student immunization records between health care providers and schools. In notice published on September 19, 2013, the Department of Health and Human Services, Office of Civil Rights published guidance that will, hopefully, facilitate the timely flow of student immunization information between health care providers and schools.
As explained in more detail in the link below, OCR will not require health care providers to obtain a formal written consent or authorization in order provide immunization records to a school. There must still be an agreement from the parent of a child to provide the records but such agreement may be oral or written. In either case, the health care provider would be required to document the parent’s agreement in the child’s medical records.
By: William Dillon, Board Certified in Health Law – firstname.lastname@example.org