Data Privacy & Security/HIPAA/HITECH

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Close up of doctor working on computer in doctor's office. Physician doing paperwork and administration.

Keypoint: With the increased frequency and severity of cyberattacks against healthcare systems, state and federal agencies strive to improve cybersecurity controls with varied success.

In November 2023, New York Governor Kathy Hochul announced proposed regulations that would be the first state regulations for hospitals in New York. The governor described the proposed regulation as a “nation-leading blueprint” that would complement the federal Health Insurance Portability and Accountability Act (HIPAA) Security Rule enforced by the U.S. Department of Health and Human Services (HHS).

What Are the Changes?

On April 26, 2024, the U.S. Department of Health and Human Services (“HHS”) issued a final rule (the “Final Rule”) along with guidance updating the Health Insurance Portability and Accountability Act (“HIPAA”) regulations at 45 C.F.R. Parts 160 and 164 (the “Privacy Rule”). The Final Rule prohibits the use or disclosure of protected health information (“PHI”) for the purpose of (1) conducting criminal, civil, or administrative investigations into, or (2) imposing criminal, civil, or administrative liability on any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care that is legal when provided. The Final Rule also prohibits the use or disclosure of PHI in order to (3) identify any person for any of those purposes (the “Prohibition”).[1]

On February 8, 2024, the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) finalized long-awaited modifications to the Confidentiality of Substance Use Disorder (SUD) Patient Records regulations at 42 C.F.R. Part 2, which requires individuals or entities that receive federal funding and provide SUD treatment to implement additional privacy protections and obtain specific consent before using and disclosing SUD treatment records (see 42 C.F.R. § 2.11).

U.S. Senators Angus King (I-ME) and Marco Rubio (R-FL) recently introduced a bill addressing cybersecurity protections and oversight in the healthcare industry. The Strengthening Cybersecurity in Health Care Act, introduced on February 8, 2024, aims to bolster a vulnerable and often-targeted industry against cyberattacks. The proposal follows a number of significant cyberattacks on healthcare organizations in recent years; Senator King noted that approximately 133 million people, or nearly one in three Americans, had their personal information compromised in 2023 alone.

DEA waivers regarding the Ryan Haight Act could play a major role in telehealth’s future.

In the first decade of the 21st century, deaths attributable to overdoses of prescription drugs saw an alarming spike in volume, led higher by a tripling of deaths due to opioid use. Amid this surge, Congress enacted the Ryan Haight Online Pharmacy Consumer Protection Act in 2008 as part of an attempt to rein in the burgeoning online marketplace for prescription drugs—particularly those involving controlled substances—which had largely evaded prior enforcement actions.

Uphealth New York Stock Exchange Picture

Led out of the firm’s Milwaukee office, Husch Blackwell represented UpHealth in its recently closed business combination that created a publicly traded, comprehensive global digital healthcare company.

Our Kate Bechen and Robin Lehninger were thrilled to join the leadership team of UpHealth Inc. at the New York Stock Exchange to celebrate their listing as a…

Electronic medical record with patient data and health care information in tablet. Doctor using digital smart device to read report online. Modern technology in hospital.

Since last year, the Husch Blackwell privacy attorneys have been working with various healthcare providers—from hospitals to hospices, to independent physician groups—to comply with the Information Blocking rule (the Rule) implemented by the Office of the National Coordinator for Health Information Technology (ONC) as part of the 21st Century Cures Act.  Recently, Education clients have been asking, “We’re a university – does the Information Blocking rule apply to our student health center?”  We discuss the answer to that question, along with practice tips, in this blog post.

Patients' privacy and confidentiality concept.

You may recall on December 10, 2020 we wrote about the Department of Health and Human Services (HHS), Office for Civil Rights (OCR) announcement of a proposed rule  that would revise the Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulations. In the proposed rule, HHS has solicited public comments, that were originally due within 60-days  of the proposed rule publication in the Federal Register.