Health Privacy

Data Breach | HHS HITECH Breach Notification — The World Privacy Forum filed comments on the HHS data breach rulemaking and asked for substantive changes in several areas. In particular, WPF asked HHS to expressly state a requirement for a breach risk assessment in the final rule itself, and to set a requirement that the risk assessment must be conducted by an independent organization. The WPF also asked that HHS set breach risk assessment standards so that there is some uniformity and guidance as to what constitutes an appropriately rigorous risk assessment when a breach occurs. In the comments, WPF also discussed the relationship between medical identity theft and medical data breach and how this impacts patients and consumers.

WPF Red Flag Report — The World Privacy Forum has updated its Red Flag report, Red Flag and Address Discrepancy Requirements: Suggestions for Health Care Providers. The update reflects the new effective date of the Red Flag Rule, (November 1, 2009) and incorporates other minor updates in the text. This report replaces the original Red Flag report published September 2008.

Under recently issued regulations, the Federal Trade Commission requires financial institutions and creditors to develop and implement written identity theft prevention programs. The broad purpose of these Red Flag and Address Discrepancy Rules [1] is to require financial institutions and creditors to formally address the risks of identity theft and develop a mitigation plan. Health care providers can be creditors and, therefore, subject to the new rules, which were originally were scheduled to take effect on November 1, 2008. The FTC suspended enforcement until November 1, 2009. [2]

This 2009 report discusses the applicability of the Federal Trade Commission’s Red Flag and Address Discrepancy Rule to health care providers. Commonly called the “Red Flag Rule,” the regulations provide health care providers with direction and guidance regarding identity theft detection, prevention, and mitigation programs.

The Fair Credit Reporting Act (FCRA) as amended in 2003 requires the Federal Trade Commission and bank regulatory agencies to issue joint regulations and guidelines regarding the detection, prevention, and mitigation of identity theft. The requirement includes special regulations directing debit and credit card issuers to validate notifications of changes of address under certain circumstances. 15 U.S.C. § 1681m(e). Another FCRA amendment calls for additional joint regulations offering guidance regarding reasonable policies and procedures that a user of a consumer report (e.g., a credit grantor) should employ when the user receives a Notice of Address Discrepancy. 15 U.S.C. § 1681c(h).