All posts in HIPAA

Why Is HIPAA Data Breach Enforcement Increasing? An Insurer’s View from Katherine Keefe

Daniel Solove
Founder of TeachPrivacy

 

 

Recently, HIPAA enforcement over data breaches is increasing – a lot. This year has seen some of the largest monetary penalties. Why is this happening?

I had the chance to interview Katherine Keefe, who leads the Beazley Breach Response (BBR) Services Group.  I am particularly interested in the insurer’s perspective, so I interviewed Katherine.

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2017 HIPAA Enforcement

Daniel Solove
Founder of TeachPrivacy

 

Art E.V.Pavlov_by_Repin

The first quarter of 2017 is not yet over and the OCR has already released details of four enforcement penalties totaling over $11 million.  2016 set a record with $20 million in fines for the year, with $5.2 million of that coming in the first quarter.  In just the first 2 months of 2017, the fines have been more than half what the entire amount for 2016 was.  Here are details about enforcement actions in 2017 thus far:

  1. Illinois health care network, Presence Health, was fined $475,000 for failing to notify patients of a breach within the 60-day period. The incident took place over 3 years ago.  In October 2013,  operating room schedules that were written on paper and contained PHI of 836 individuals went missing.   Patients were not notified of the breach until February of 2014.  This represents the first enforcement related to the timeliness of breach notification.
  1. An insurance company, MAPFRE, was fined $2.2 million for failure to safeguard portable devices and poor risk assessment and risk management.  OCR found that MAPFRE did not have an adequate security awareness training program in place for their workforce.   In 2011, an unsecured USB device containing the ePHI of 2,209 individuals was stolen from the company’s IT department.  Despite the corrective measures MAPFRE indicated it would take, it did not actually start securing portable devices until 3 years after the incident.
  1. Children’s Medical Center of Dallas received a $3.2 million fine for multiple incidents where devices with unsecured ePHI were stolen. In 2010 an unencrypted Blackberry was stolen with the ePHI of 3,800 individuals.  In 2013, an unencrypted laptop was stolen with ePHI of 2,463 individuals.  The OCR investigation discovered that the hospital did not begin to secure and safeguard workstations and portable devices until 2013 despite being aware of the risks for many years.
  1. Florida corporation, Memorial Healthcare System, agreed to pay a fine of $5.5 million. This ties Advocate Health Care Network’s fine in August of 2016 for the record of highest penalty.  In this incident, the PHI of 115,143 patients was improperly accessed and disclosed.   Memorial Healthcare failed to terminate a former employee’s log-in credentials which was then used to access 80,000 records with PHI over the course of an entire year.  The company also neglected to review the activity within the system that would have identified that the records were being improperly accessed.   Memorial discovered the breach while investigating two employees who were stealing patient information to file fake tax returns.

Not too long ago, I posted an overview of OCR’s enforcement in 2016.  OCR continues to be active in its enforcement, at its highest level to date.  This is a great opportunity for privacy and security officials to point out to upper management the need for greater resources and attention to HIPAA compliance.

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Lessons from 2016, the Biggest HIPAA Enforcement Year on Record

Daniel Solove
Founder of TeachPrivacy

HIPAA Enforcement

Time to call the Guinness Book of World Records because HHS has set a new world record in HIPAA enforcement.  2016 saw a considerable increase in HIPAA enforcement resolution agreements and monetary penalties.  At the end of 2016, the OCR logged over $20 million in fines for HIPAA violations from 15 enforcement actions with monetary penalties — a stark contrast to 2015 penalties which were just over $6 million from just 6 resolution agreements.

The per entity fines have increased as well increasing from about $850K in recent years to $2 million in 2016.

Also, in late 2015, the Office of the Inspector General released findings of a study that recommended a stronger enforcement and follow-up from the OCR for HIPAA violations:

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HIPAA Cartoon on Snooping

Daniel Solove
Founder of TeachPrivacy

This cartoon is about snooping, one of the most common HIPAA violations.  HIPAA prohibits accessing information that people don’t need to do their jobs.   It can be easy to look at electronic medical records, and people who snoop in this way might not perceive it as wrong.  But the cartoon invites people to imagine how creepy the snooping would appear if it were occurring right in front of patients.  Computers remove the interpersonal dynamic, making it harder for people to fully appreciate the wrongfulness of their conduct.

Though the high-profile, celebrity snooping incidents garner all the media attention, smaller cases affecting everyday individuals make up the bulk of the cases and legal activity.  A large number of inappropriate access claims involve people checking on protected health information (PHI) about family and friends.  Snooping is not intended maliciously.  Often a concerned staff member will access the patient records of a family member or acquaintance out of worry or concern.  In one case, a nurse in New York was fired for disclosing a patient’s medical history to warn a family member who was romantically involved with the patient of the patient’s STD.

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HIPAA Cartoon on Social Media Use

Daniel Solove
Founder of TeachPrivacy

HIPAA Cartoon Social Media

Here’s a cartoon on HIPAA and social media use to jump start your week.  You can’t think enough about HIPAA these days.  HIPAA audits are back, and OCR is having a vigorous enforcement year this year, something I plan to post about soon.

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HIPAA Cartoon on HIPAA’s Jargon

Daniel Solove
Founder of TeachPrivacy

HIPAA Cartoon - TeachPrivacy HIPAA Training

HIPAA is famously impenetrable, with so many special terms and definitions.  I wrote this cartoon to capture the wonderful world of HIPAA jargon, which I hope fellow lovers of HIPAA can appreciate.

AHIMA LogoFor those who want an introduction to HIPAA and how the Privacy Rule and the Security Rule work, I produced a series of courses on HIPAA for the American Health Information Management Association (AHIMA). Each course is approximately 1 hour long.  The courses are:

• HIPAA Privacy: The Pillars of a Privacy Program
• HIPAA Privacy: Rights and Responsibilities
• HIPAA Security: Safeguarding PHI

They are available through AHIMA, but you can preview them on my site here.

HIPAA Courses - AHIMAThese AHIMA HIPAA courses are not for the entire workforce — the courses are for personnel who focus on HIPAA compliance and need to understand the basics of how HIPAA works.  My HIPAA training for the workforce is shorter as well as more basic and general.

I have another HIPAA cartoon here.

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HIPAA’s Failure to Provide Enough Patient Control Over Medical Records

Daniel Solove
Founder of TeachPrivacy

HIPAA Privacy Rule

 

A Not-So-Far-Fetched Seinfeld Episode

In a Seinfeld episode called “The Package” from 1996 (click here to see the scene), airing just months after HIPAA was passed,  Elaine goes to see a doctor for a rash.

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HIPAA Cartoon – HIPAA Compliance Program

Daniel Solove
Founder of TeachPrivacy

HIPAA Training - Cartoon HIPAA Compliance

Recently, HIPAA celebrated its 20th birthday.  HHS issued a celebratory blog post.  HIPAA is 20 years old if you start counting from the date the statute was passed (1996).  If we measure HIPAA’s age from the date that the HIPAA Privacy Rule became effective (2003), then HIPAA is 13.

So HIPAA could be 20 years old, eager to become 21 and be able to drink (right now, it just makes people want to drink) or 13 years old and about to begin being an unruly teenager.

A few years ago, I published an article in the Journal of AHIMA to celebrate HIPAA’s 10th birthday (counting from when the Privacy Rule became effective).  The article discusses HIPAA’s growth and impact, and is a quick read if you’re interested.  You can download it for free here:

HIPAA Turns 10: Analyzing the Past, Present, and Future Impact
84 Journal of AHIMA 22 (April 2013)

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Is a Ransomware Attack a HIPAA Data Breach?

Daniel Solove
Founder of TeachPrivacy

Ransomware - Security Awareness Training

As ransomware escalates and poses serious security risks for healthcare institutions, many privacy experts and legislators have called for more specific guidance from the U.S. Department of Health and Human Services (HHS).

A few weeks ago, HHS responded to these calls with a detailed fact sheet to explain ransomware and provide advice.  Although most of the document outlines what should be obvious for an organization that already has a solid data security plan (including reliable back-ups, workforce training, and contingency plans), the major headline is HHS’s verdict on whether or not a ransomware attack qualifies as a data breach under HIPAA.

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HIPAA’s Long Arm — and Why It’s a Good Thing

Daniel Solove
Founder of TeachPrivacy

HIPAA Training

Recently, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued its first resolution agreement and monetary penalty against a business associate (BA).

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3 Types of Incidents Account for 86% of HIPAA Data Breaches

Daniel Solove
Founder of TeachPrivacy

HIPAA Data BreachA new report by Verizon, the PHI Data Breach report, analyzes 1,931 data breaches of protected health information (PHI) under HIPAA,  The incidents occurred between 1994 and 2014, with most occurring from 2004-2014.  An article from Computer World sums up the findings of the report.

Verizon 2016 Healthcare ReportOne interesting statistic is that 392 million PHI records were compromised in these breaches, more than the entire population of the United States.

The report notes that 3 types of incident account for 86% of the data breaches:

(1) Lost or stolen portable electronic devices

(2) Sending records to the wrong individual

(3) Improper access to PHI by employees

What do these things have in common?

These are problems that deal with the human factor.  The problems are preventable, and the risk of them can be significantly reduced through training.

To train on these things, organizations must do more then merely say: “Be careful” or “Do not do.”  The training must have an impact on people.  And education is most effective with repetition. People must be repeatedly educated, over and over again.

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Is HIPAA Enforcement Too Lax?

Daniel Solove
Founder of TeachPrivacy

title

By Daniel J. Solove

ProPublica has been running a series of lengthy articles about HHS Office for Civil Rights (OCR) enforcement that are worth reading.

A Sustained and Vigorous Critique of OCR HIPAA Enforcement

A ProPublica article from early in 2015 noted that HIPAA fines were quite rare. The article noted that from 2009 through 2014, more than 1,140 large data breaches were reported to OCR, affecting 41 million people. Another 120,000 HIPAA violations were reported affecting fewer than 500 people. “Yet, over that time span,” the article notes, “the Office for Civil Rights has fined health care organizations just 22 times. . . . By comparison, the California Department of Public Health . . . imposed 22 penalties last year alone.”

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The Value of HIPAA Training

Daniel Solove
Founder of TeachPrivacy

HIPAA Training

HIPAA expert Rebecca Herold offers a very compelling explanation of the value of HIPAA training.  She writes:

Information security and privacy education is more important than ever because new gadgets and technologies enable more healthcare workers to collect and share data.

In September 2015, Cancer Care Group agreed to settle HIPAA violations by paying a $750,000 fine and adopting a “robust corrective action plan to correct deficiencies in its HIPAA compliance program.” One of the major requirements for Cancer Care Group was to review and revise its training program, because the breach was caused by an easily preventable employee action (leaving a laptop with clear text files of 55,000 patients in an unsecured car).

Training needs to be more than once a year, and as soon as, or prior to, the start of employment. There also need to be ongoing awareness communications and activities, as required by HIPAA.

Every organization of every size needs to invest some time and resources into regular training and ongoing awareness communications. Besides being a wise business decision, it’s also a requirement in most data protection laws and regulations to provide such education.

To this, all I can say is: Amen.

Rebecca is the author of several great resources on HIPAA, including The Practical Guide to HIPAA Privacy and Security Compliance.

Rebecca Herold Practical Guide to HIPAA

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Blogging Highlights 2015: Health Privacy+Security Issues

Daniel Solove
Founder of TeachPrivacy

HIPAA Training

I’ve been going through my blog posts from 2015 to find the ones I most want to highlight.  Here are some selected posts about health privacy and security:

Why HIPAA Matters: Medical ID Theft and the
Human Cost of Health Privacy and Security Incidents

care

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Why HIPAA Matters: Medical ID Theft and the Human Cost of Health Privacy and Security Incidents

Daniel Solove
Founder of TeachPrivacy

Why HIPAA matters

By Daniel J. Solove

Whenever I go to a doctor and am asked what I do for a living, I say that I focus on information privacy law.

“HIPAA?” the doctors will ask.

“Yes, HIPAA,” I confess.

And then the doctor’s face turns grim.  At first, it looks like the face of a doctor about to tell you that you’ve got a fatal disease.  Then, the doctor’s face crinkles up slightly with disgust. This face is so distinctive and so common that I think it should be called “HIPAA face.”  It’s about as bad as “stink eye.”

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Lessons from the Latest HIPAA Enforcement Action

Daniel Solove
Founder of TeachPrivacy

HIPAA Training OCR Enforcementby Daniel J. Solove

Recently, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) publicized its resolution agreement in its HIPAA enforcement action against St. Elizabeth’s Medical Center (SEMC).  SEMC agreed to pay $218,000.

The case began with a complaint filed with OCR back in 2012 that employees were sharing PHI of nearly 500 patients via an online sharing application without a risk analysis on such activities being undertaken.  OCR investigation found that the medical center “failed to timely identify and respond to the known security incident, mitigate the harmful effects of the security incident and document the security incident and its outcome.”

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Patient Access to Medical Records Under HIPAA: Significant Reform Needed

Daniel Solove
Founder of TeachPrivacy

Doctor taking notes in his office, isolated

by Daniel J. Solove

Recently, I wrote about the challenges in accessing health information about family members.  In this post, I will explore patients’ access to their own medical records.

HIPAA doesn’t handle patient access to medical records very well. There are many misunderstandings about patient access under HIPAA that make it quite difficult for patients to obtain their medical information quickly and conveniently.

Getting records is currently like a scavenger hunt. Patients have to call and call again, wait seemingly forever to get records, and receive them via ancient means like mail and fax. I often scratch my head at why fax is still used today — it’s one step more advanced than carrier pigeon.

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HIPAA’s Friends and Family Network: Access to Health Information

Daniel Solove
Founder of TeachPrivacy

HIPAA Training Blog Sharing PHI with Friends and Family 02

by Daniel J. Solove

Suppose your elderly mother is being treated at the hospital for a heart condition. Your mother tells her doctor that you can have access to her health information. The doctor, however, doesn’t disclose the information to you.

The doctor thinks that you can only have the information with a signed written authorization. Is this correct?

No. HIPAA doesn’t require a signed or even a written authorization. If a patient tells a doctor that protected health information (PHI) can be shared with family or friends, then that’s all that is needed. The doctor can disclose it to you.

So has the doctor violated HIPAA by refusing to disclose the PHI?

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New Resource Page: HIPAA Training Requirements FAQ

Daniel Solove
Founder of TeachPrivacy

HIPAA Training Requirements Whiteboard 02

by Daniel J. Solove

I recently created a new resource page for the TeachPrivacy website: HIPAA Training Requirements: FAQ.

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The Importance and Goals of HIPAA Training Programs

Founder of TeachPrivacy

HIPAA Training

by Daniel J. Solove

There is a great quote in this article from HealthcareInfoSecurity: that expresses very well the importance and goals of HIPAA training programs:

Workforce training is important not only for preventing breaches, including those involving ID crimes, but also to help detect those incidents, [Ann Patterson of the Medical Identity Fraud Alliance] says. “Each employee must understand their role in protecting PHI. Equally important is regular and continued evaluation of the training programs to make sure that employees are adhering to the policies put in place, and that the ‘red flags’ detection systems are keeping pace with changing technologies and workplace practices.”

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New Resource Page: Text of HIPAA’s Training Requirements

Daniel Solove
Founder of TeachPrivacy

HIPAA Training Requirements Text 01

by Daniel J. Solove

I recently created a new resource page for the TeachPrivacy website: Text of HIPAA’s Training Requirements.  This page provides excerpts of the training provisions in the HIPAA Privacy Rule and the HIPAA Security Rule.

This page is designed to be a useful companion page to our resource page, HIPAA Training Requirements: FAQ.  The FAQ discuss my interpretation of the HIPAA training provisions, but the full text of those provisions is located on the separate new resource page above.

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Health Data Security in Crisis, Phase 2 Audits, and Other HIPAA Privacy + Security Updates

Daniel Solove
Founder of TeachPrivacy

title image

By Daniel J. Solove

Co-authored with Professor Paul Schwartz

This post is part of a post series where we round up some of the interesting news and resources we’re finding. We have split the health/HIPAA material from our updates on other topics. To see our updates for other topics, click here.

For a PDF version of this post, and for archived issues of previous posts, click here.

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Myths About Privacy Law and the First Amendment

Daniel Solove
Founder of TeachPrivacy

Privacy and First Amendment 01

by Daniel J. Solove

In Sorrell vs. IMS Health, 131 S. Ct. 2653 (2011), the Supreme Court struck down Vermont’s Prescription Confidentiality Law as a violation of the First Amendment right to free speech. The Vermont law restricted the sale and marketing use of information that would identify prescribers without their consent. The Supreme Court reasoned that the Vermont law “enacts content- and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information.” According to the Court, the statute made content-based restrictions because it singled out marketing, and the statute made speaker-based restrictions because it focused on pharmaceutical manufacturers. The Court stated: “The law on its face burdens disfavored speech by disfavored speakers.”

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The Health Data Breach and ID Theft Epidemic

Daniel Solove
Founder of TeachPrivacy

Title image

By Daniel J. Solove

When you go to the hospital, you might worry about catching a staph infection or pneumonia, but you should also worry about contracting a nasty case of medical identity theft. Most people suffer significant harm from medical ID theft, and few are completely cured. This ailment is spreading dramatically as data spurts out of healthcare organizations these days as if from a ruptured aorta.

In January of this year, an article citing U.S. Department of Health and Human Services (HHS) statistics noted that in the past 5 years, there have been roughly 120,000 reported data breaches involving HIPAA protected health information. These breaches have involved more than 31 million individuals.

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Why the Anthem Data Breach Is Needlessly Harmful

Daniel Solove
Founder of TeachPrivacy

Title image

By Daniel J. Solove

Recently, Anthem, one of the largest health insurance providers, suffered a massive data breach involving personal data on up to 80 million people. According to Anthem, the data breached includes “names, dates of birth, member ID/ social security numbers, addresses, phone numbers, email addresses and employment information.”

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Drones, Data Breaches, Cramming, and Other Privacy + Security Updates

Daniel Solove
Founder of TeachPrivacy

drones and data breaches

by Daniel J. Solove

This post is co-authored with Professor Paul M. Schwartz.

This post is part of a post series where we round up some of the interesting news and resources we’re finding. For a PDF version of this post, and for archived issues of previous posts, click here.

We became quite busy after the last update, so we’re a bit backlogged. We are catching up on developments late last year and we have a lot of material. We will release the next issue soon, as there is too much material to fit into this issue.

For a PDF version of this post, click here.

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Notable Privacy and Security Books in 2014

Daniel Solove
Founder of TeachPrivacy

notable privacy books 2014

by Daniel J. Solove

There were quite a number of books published about privacy and security issues last year, and I would like to highlight a few notable ones. A few books came out in late 2014 and have an early 2015 publication date. I’m including them here. The books are in no particular order.

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Privacy and Security Developments 2014 Issue 1

Daniel Solove
Founder of TeachPrivacy

privacy and security update

by Daniel J. Solove

Issue 2014 No. 1

This post is co-authored with Professor Paul M. Schwartz.

We spend a lot of time staying up to date so we can update our casebooks and reference books, so we thought we would share with you some of the interesting news and resources we’re finding. We plan to post a series of posts like this one throughout the year.

For a PDF version of this post, click here.

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Lawsuits for HIPAA Violations and Beyond: A Journey Down the Rabbit Hole

Daniel Solove
Founder of TeachPrivacy

hipaa lawsuits 1

by Daniel J. Solove

At first blush, it seems impossible for a person to sue for a HIPAA violation. HIPAA lacks a private cause of action. So do many other privacy and data security laws, such as FERPA, the FTC Act, the Gramm-Leach-Bliley Act, among others. That means that these laws don’t provide people with a way to sue when their rights under these laws are violated. Instead, these laws are enforced by agencies.

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The Most Alarming Fact of the HIPAA Audits

Daniel Solove
Founder of TeachPrivacy

hipaa audits 1

law blog 2

by Daniel J. Solove

Are privacy and security laws being enforced effectively? This post is post #5 of a series called Enforcing Privacy and Security Laws.

Under the Health Insurance Portability and Accountability Act (HIPAA), various organizations can be randomly selected to be audited – even if no complaint has been issued against them and even if there has been no privacy incident or breach.

What the audits thus far have revealed is quite alarming. I’ll discuss more on that later.

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Ebola and Privacy: Snooping, Confidentiality, and HIPAA

Daniel Solove
Founder of TeachPrivacy

Ebola Virus Confidential

by Daniel J. Solove

The recent cases of Ebola in the United States demonstrate challenges to health privacy in today’s information age — both in preventing employees from snooping into patient information as well as preventing the disclosure of patient identities.

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The Brave New World of HIPAA Enforcement

Daniel Solove
Founder of TeachPrivacy

hipaa enforcement

law blog 2

by Daniel J. Solove

Are privacy and security laws being enforced effectively? This post is post #4 of a series called Enforcing Privacy and Security Laws.

hhs logoThe Health Insurance Portability and Accountability Act (HIPAA) regulations govern health information maintained by various entities covered by HIPAA (“covered entities”) and other organizations that receive health information from covered entities when performing functions for them. HIPAA is enforced by the Office for Civil Rights (OCR) in the Department of Health and Human Services (HHS). Additionally, state attorneys general (AGs) may enforce HIPAA – only a few federal privacy laws can also be enforced by state AGs.

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The Privacy Pillory and the Security Rack: The Enforcement Toolkit

Daniel Solove
Founder of TeachPrivacy

privacy pillory

law blog 2

by Daniel J. Solove

Are privacy and security laws being enforced effectively? This post is post #2 in a series called Enforcing Privacy and Security Laws. See the end of this post for links to other posts in this series.

What kind of sanctions do privacy and security laws use for enforcement? In this post, I will discuss the various tools that are frequently used in the enforcement of privacy/security laws.

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The Best Preventative Medicine for Health Data Breaches

Daniel Solove
Founder of TeachPrivacy

data breach 1

by Daniel J. Solove

Last week, I gave a keynote address at a conference called Safeguarding Health Information: Building Assurance through HIPAA Security, sponsored by the National Institute of Standards and Technology (NIST) and the Department of Health and Human Services (HHS), Office for Civil Rights (OCR). I’d like to summarize my remarks here for anyone interested who wasn’t able to attend.

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How to Enter the Privacy Profession

Daniel Solove
Founder of TeachPrivacy

privacy profession

by Daniel J. Solove

The privacy profession is growing by leaps and bounds, but entering it is tricky. My law students and others frequently ask me how they can enter the privacy field. Most jobs seem to require a few years of experience, but the privacy profession is still relatively new, and getting this experience can be difficult because there are not many clear paths to entry.

Once in the field, the demand is high for privacy professionals with experience. But there is a bottleneck in getting into the club. I have written about this problem in a previous blog post.

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Follow Professor Solove on Social Media

Daniel Solove
Founder of TeachPrivacy

If you are interested in privacy and data security issues, there are many great ways Professor Solove can help you stay informed:

Professor Solove’s LinkedIn Influencer blog

LinkedIn Influencer 02 You can follow Professor Solove on his blog at LinkedIn, where he is an “LinkedIn Influencer.”  He blogs about various privacy and data security issues. His blog has more than 600,000 followers.

LinkedIn Influencer 01

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Professor Solove’s Twitter Feed

Twitter 01Professor Solove is active on Twitter and posts links to current privacy and data security stories and new scholarship, cases, and developments of note.

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Professor Solove’s Newsletter

Newsletter 01Sign up for our newsletter where Professor Solove provides information about his recent writings and new training programs that he has created.

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Professor Solove’s LinkedIn Discussion Groups

Please join one or more of Professor Solove’s LinkedIn discussion groups, where you can follow new developments on privacy, data security, HIPAA, and education privacy issues. You can also participate in the discussion, share interesting news and articles, ask questions, or start new conversations:

Privacy and
Data Security
HIPAA Privacy
and Security
Education Privacy
and Data Security
Image Group LinkedIn Logo Education Privacy 01 Image Group LinkedIn Logo HIPAA 01 Image Group LinkedIn Logo Privacy Security 01

6 Lessons from the Costliest HIPAA Settlement to Date

Daniel Solove
Founder of TeachPrivacy

Costliest HIPAA Settlement blog 1

by Daniel J. Solove

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) recently announced the costliest HIPAA settlement to date — a $4.8 million settlement with New York and Presbyterian Hospital (NYP) and Columbia University (CU). The case involved the disclosure of protected health information on the Internet. Here are some lessons from this latest case:

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Waking Up the C-Suite to Privacy and Security Risks

Daniel Solove
Founder of TeachPrivacy

waking up the c suite

by Daniel J. Solove

I was recently interviewed in the Journal of AHIMA on how the C-suite is waking up to the new realities of privacy and data security risks. Before the HITECH Act in 2009, HIPAA enforcement was based on a cooperative model where HHS was not punitive in its approach. Now, big fines are being issued. There is auditing. The climate has changed.

Privacy and security risks are quite costly. This is true not just under HIPAA, but also as a general matter. At many organizations, the C-Suite doesn’t fully appreciate the magnitude of the risk. Back about 10 years ago, for many organizations, privacy and security risks were barely on the radar. Now they are recognized for many organizations, but the significance of the risk is often not fully understood or appreciated.

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The Battle for Leadership in Education Privacy Law: Will California Seize the Throne?

Daniel Solove
Founder of TeachPrivacy

Blank chalkboard and stack of books

by Daniel J. Solove

This post was co-authored by Professor Paul Schwartz, Berkeley Law School.

Education was one of the first areas where privacy was regulated by a federal statute. Passed in the early 1970s, the Family Educational Rights and Privacy Act (FERPA) was on the frontier of federal privacy regulation. But now it is old and ineffective. With the growing public concern about the privacy of student data, states are starting to rev up their engines and become more involved. The result could be game-changing legislation for the multi-billion dollar education technology industry.

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The Year in Privacy 2013 and the Year to Come

Daniel Solove
Founder of TeachPrivacy

high-tech technology background with eyes on computer display

by Daniel J. Solove

2013 was a remarkable year in privacy developments. Here are four main trends I saw occurring this year:

1. The heat on the NSA for its broad surveillance programs has been sustained and productive.

The Edward Snowden leaks revealed massive NSA surveillance efforts. What is most interesting in the aftermath of the recent NSA surveillance revelations has been the strong public disapproval of the NSA surveillance and courts finally taking some leadership on the issue, such as one court declaring the surveillance likely unconstitutional. The President’s Review Group on Intelligence and Communications Technologies recommended curbs on the NSA. Congress has yet to show leadership on the issue, which remains disappointing, but we are finally seeing the stirrings of a response and perhaps change. Indeed, 56% of people in a Pew poll “say that federal courts fail to provide adequate limits on the telephone and internet data the government is collecting.”

Moreover, the story regarding NSA surveillance keeps going on. It hasn’t faded. The overall trend is that there is now sustained heat on the NSA and a sustained stirring for changing the law to provide greater oversight and controls on government surveillance.

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HIPAA Turns 10: Analyzing the Past, Present, and Future Impact

Daniel Solove
Founder of TeachPrivacy

by Daniel J. Solove

In the April issue of the Journal of AHIMA, I authored two short pieces about HIPAA:

HIPAA Turns 10: Analyzing the Past, Present, and Future Impact
84 Journal of AHIMA 22 (April 2013)

HIPAA Mighty and Flawed: Regulation has Wide-Reaching Impact on the Healthcare
Industry
84 Journal of AHIMA 30 (April 2013)

The first piece provides an overview of HIPAA and its evolution. The second involves an analysis of HIPAA’s strengths and weaknesses. Overall, I find HIPAA to be one of the most effective privacy regulatory regimes.  HIPAA is very effective in large part because it requires privacy and security officials who have responsibility over these issues.  These officials develop policies and procedures, perform assessments, and provide HIPAA training to employees, among other things. Privacy laws are not self-executing, and enforcement agencies have limited enforcement resources. The effectiveness of the law depends upon each organization taking compliance seriously, and this starts with a governance structure, awareness training, and things that create a culture of compliance.  Many other privacy laws don’t realize this, and fail to include the robust governance components of HIPAA.

The entire issue is here. Copyright belongs to Journal of AHIMA.

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of training on privacy and security topics.  

If you are interested in privacy and data security issues, there are many great ways Professor Solove can help you stay informed:
* Professor Solove’s LinkedIn Influencer blog
* Professor Solove’s Twitter Feed
* Professor Solove’s Newsletter

Please join one or more of Professor Solove’s LinkedIn Discussion Groups:
* Privacy and Data Security
* HIPAA Privacy & Security
* Education Privacy and Data Security

Privacy and Security Training: Why Train? What Is Effective?

Daniel Solove
Founder of TeachPrivacy

by Daniel J. Solove

I recently presented at the ABA Antitrust Spring Meeting about privacy and data security training on a panel called “Compliance Tools for In-House Chief Privacy Officers.” I discussed why all organizations should have privacy training and what makes privacy training effective. I thought I’d share with you the gist of my talk.

Why Train?

The short answer – an ounce of prevention is worth a pound of cure. Privacy and security incidents can leave gaping wounds, and training can reduce the risk.

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The HIPAA-HITECH Regulation, the Cloud, and Beyond

Daniel Solove
Founder of TeachPrivacy

HIPAA HITECH Privacy Trainingby Daniel J. Solove

The new HIPAA-HITECH regulation is here. Officially titled “Modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules,” this new regulation modifies HIPAA in accordance with the changes mandated by the HITECH Act of 2009. After years of waiting and many false alarms that the regulation was going to be released imminently, prompting joking references to Samuel Beckett’s play Waiting for Godot, HHS unleashed 563 pages upon the world. According to Office for Civil Rights (OCR) director Leon Rodriguez, the rule “marks the most sweeping changes to the HIPAA Privacy and Security Rules since they were first implemented.” I agree with his dramatic characterization of the regulation, for it makes some very big changes and very important ones too.

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Final HIPAA-HITECH Regulation

Daniel Solove
Founder of TeachPrivacy

posted by Daniel J. Solove

The final HIPAA-HITECH regulation is finally out!  Clocking in at 563 pages long, the regulation, which is entitled “Modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules” will be published in the Federal Register on January 25, 2013.  You can download the PDF of the pre-publication version here.