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A leading technology advisor to President Obama said in a research note for his investment firm today that privacy and net neutrality will be among the biggest telecommunications issues facing the Federal Communications Commission and the administration going forward. Analyst Blair Levin, who was the co-lead of Obama's technology and innovation team along with nominated FCC Chair Julius Genachowski, wrote in a Stifel Nicolaus research note that the economic crisis and change of administration will shift the focus of telecom policy away from traditional phone companies to "Internet/edge" players. Indeed, Google and other Web video and voice companies like Skype have been increasingly active in recent years at the FCC, pushing particularly for net neutrality rules that would prevent carriers from blocking or charging more for certain content that travels over the Web. Levin said in a note that net neutrality will emerge again as an issue in the new administration for wireless networks. On the other hand, there won't likely be a push for new net neutrality rules for cable, DSL, and fiber network carriers at the FCC. "(There is a) consensus emerging that disputes about whether a wireline network management tool is 'reasonable' (or is actually blocking or degrading traffic) to be resolved on a case-by-case basis," Levin wrote in the note with analysts Rebecca Arbogast and David Kaut. It would be a tough climb to impose rules that force wireless carriers to open their networks. Apple and AT&T successfully argued to lawmakers and regulators to keep their exclusive iPhone contract. Skype's petition to the FCC to force carriers to allow any handset or software to operate on any network was shot down by former FCC Chairman Kevin Martin. He said the biggest "sleeper" issue will be privacy. With a major overhaul of healthcare records to the Web, the rise in behavioral advertising and cloud computing, where information is stored in computers strung across many geographies

Bring up the subject of digitizing medical records and you're likely to get a paradox of a discussion. Everyone thinks it will help save money and improve health care, and everyone has grave reservations. Get ready to hear more as a massive economic stimulus bill works its way through Congress, which includes IT health care spending measures. Although lawmakers are close to pulling the trigger. ensuring the privacy of patients' electronic health records (EHR) remains a top concern. "I very firmly believe that the Achilles heel of health IT is privacy," said Sen. Jim Whitehouse, a Rhode Island Democrat who chaired a hearing this morning examining the appropriate safeguards government should insist on before it doles out billions of dollars to help providers computerize patients' records. Champions of health IT argue that EHRs and interoperable systems to integrate data among providers would drive down healthcare costs while greatly reducing medical errors. Just 17 percent of physicians currently have even basic EHRs. The Center for Disease Control has estimated that as many as 98,000 preventable deaths occur in U.S. hospitals each year, many of which could presumably been avoided with more accessible patient data. "If 100,000 Americans were being killed by anything else, we'd be at war," Whitehouse said.

Taking genetic tests to assess potential health risks could mean cheaper medical insurance even if the results are not disclosed, a senior industry executive has told The Times. Customers who take personal DNA scans will pay lower premiums because insurers believe that they encourage a healthier lifestyle, according to Gil Baldwin, the managing director of Norwich Union Healthcare. The advent of tests for DNA variants that affect common disorders such as diabetes and heart disease has prompted fears of discrimination and the creation of a "genetic underclass" who cannot buy cover. Mr Baldwin insisted that his company did not see genetics as a tool for cherry picking low-risk customers but as a way of helping them to manage and reduce their risk of disease with the aim of lowering costs for both parties. In an interview with The Times, he said that people who take genetic screening are likely to act on the results and therefore present a much better risk profile. Insurers will reflect this in premiums, regardless of whether results are disclosed.

Paperwork containing the personal medical information of at least 66 patients at Massachusetts General Hospital was lost this month when an employee apparently left it on an MBTA train. The hospital sent out letters last week to patients whose identities were included in the lost paperwork, telling them the information listed their names and dates of birth, and private medical information, including their diagnoses and the name of the provider with whom they met. The material constituted billing records for patients who attended the hospital's Infectious Disease Associates outpatient practice on Fruit Street on March 4. Deborah A. Adair, the hospital's privacy officer and director of health information services, said in a statement released yesterday that while the incident was regrettable, the hospital followed privacy laws by immediately alerting affected patients and authorities, including the state attorney general's office and the Department of Consumer Affairs and Business Regulation. "[Hospital] police and security are thoroughly investigating this matter not only with an eye toward recovering the missing information but also toward making sure that this will not happen again," Adair said. "Our information privacy and security policies and procedures are among the strongest in the healthcare industry, but incidents such as this remind us that we must continue to review and revise them, as well as continue to educate our staff on best practices to avoid incidents such as this." According to hospital security reports, a manager in the infectious disease center's billing unit told supervisors that she left the paperwork on a Red Line train the morning of March 9. The manager said she had brought the paperwork home with her to work over the weekend and left the material sometime between 7:30 and 9 a.m. The Transit Police were notified, but the paperwork was not found.

Industry Insiders Discuss HIT and HIPAA Issues March 30, 2009 by Astrid Fiano, Writer A significant part of President Obama's health care reform agenda is the push for implementing more health care technology. In the health care field privacy is always a major concern, and was the impetus of the Health Insurance Portability and Accountability Act of 1996--protecting the privacy of individually identifiable health information in all formats, and the confidentiality provisions of the Patient Safety Act--protecting identifiable information being used to analyze patient safety events. So those in the health care industry now wonder will the Administration's focus on health IT (HIT) present more challenges to privacy concerns? As part of a continuing focus on HIT issues, DOTmed interviewed industry expert Kirk J. Nahra, a partner in the Washington D.C. legal firm of Wiley Rein LLP, specializing in privacy and information security for the health care and insurance industries, and named an expert practitioner by the Guide to the Leading U.S. Healthcare Lawyers. DOTmed also interviewed Lise Rauzi, Vice President, Training Development, for Health Care Compliance Strategies (HCCS). HCCS provides online training compliance for employees. Nahra notes that regardless of the rising concern over privacy and the new HIT legislation, there have already been formal HIPAA security rules on electronic information in place for several years--the health care industry compliance has just been inconsistent. The problem -- to the extent there is one -- is that HIPAA rules are process-oriented, Nahra explained. The rules don't tell an entity what to do, but rather what to evaluate--a standard set of questions, but without a standard set of answers. For example, a covered entity has to have an internal audit, but the rules do not tell the entity how best to carry out that internal audit. Not surprisingly, different businesses have different ideas on how to implement their HIPAA evaluations

Healthcare organizations are losing more than just names, addresses and Social Security numbers. When their data gets stolen, patients lose the privacy of their medical conditions, treatments and medications while at the same time falling prey to identity theft, medical billing fraud and other criminal schemes. Theft of electronic medical records is on the rise, and the implications are getting more serious. In a 2008 survey of identity theft victims, the Identity Theft Resource Center found that 67% had been charged for medical services they never received and 11% were denied health or life insurance due to unexplained reasons.

Both panels that advise the national coordinator for health IT plan to focus on privacy and security standards needed to support meaningful use of electronic health records when they meet later this month, according to notices in today's Federal Register. The Health IT Policy Committee, led by Dr. David Blumenthal, the national coordinator for health IT, will direct more of its discussion at its upcoming Sept. 18 meeting on health information privacy and security as it makes progress in defining meaningful use under the stimulus law, according to the notice. Likewise, the companion Health IT Standards Committee, which meets Sept. 15, will concentrate on refining standards recommendations made by its privacy and security work group. At the Standards Committee's previous meeting Aug. 20, its privacy and security workgroup presented standards for authentication, authorization, auditing and secure data transmission of health information in EHR products as well as the infrastructure that hosts them. The work of the panel includes protecting data inside an enterprise as well as data exchange between enterprises, "because security is an end to end process," noted Dr. John Halamka, the committee's chairman in a post on his blog, "Life as a Healthcare CIO."

"The U.S. Department of Health and Human Services issued an interim final rule to beef up penalties for violations of the Health Insurance Portability and Accounting Act (HIPAA), as several Congressmen criticize the agency for leaving dangerous loopholes in the law. The new rules significantly increase penalty amounts that the U.S. Department of Health and Human Services can impose for HIPAA violations of patient privacy, according to a statement from HHS. The new rules reflect requirements enacted in the Health Information Technology for Economic and Clinical Health (HITECH) sections of the American Recovery and Reinvestment Act (ARRA) of 2009. Before HITECH, maximum penalties were $100 for each violation or $25,000 for all identical violations of the same provision. A covered health care provider, health plan, or clearinghouse could be exempt from civil financial penalties if it demonstrated it did not know it violated the HIPAA rule. The HITECH act increases civil financial penalties by establishing tiered ranges of increasing minimum penalties, with a maximum $1.5 million for all violations of identical provisions. And a "covered entity" can plead ignorance as a protection only if it fixes the violation within 30 days of discovery."

"As Congress makes headlines on healthcare and financial industry oversight reform, online data privacy watchdogs are hammering away behind the scenes on the Hill. A joint hearing on online and offline data collection scheduled for later this week, and a planned series of Federal Trade Commission data privacy events have advocacy groups from as far away as California visiting Washington to make sure their voices are heard. "What we're concerned about is the amount of surveillance and tracking going on without consumer consent," said Lee Tien, senior staff attorney at the San Francisco-based Electronic Frontier Foundation. Though often skeptical of government regulation, EFF recently joined lobbying groups including Center for Digital Democracy in recommending that Congress pass clear consumer privacy legislation. "

Those who are superstitious may believe that bad things happen on Friday the 13th, but we will leave it to each individual and entity to formulate conclusions regarding the Health Information Technology for Economic and Clinical Health Act (the HITECH Act), which Congress passed late on Friday, February 13, 2009, and President Obama officially signed into effect on February 17, 2009. The HITECH Act addresses various aspects relating to the use of health information technology (H.I.T.), including providing for federal funding by way of grants and incentive payments in order to promote H.I.T. implementation. This Alert focuses, however, on Subtitle D of the HITECH Act, which includes important, new and far-reaching provisions concerning the privacy and security of health information that will materially and directly affect more entities, businesses and individuals in more diverse ways than ever before. These changes are further elaborated upon below, but this Alert can only highlight certain prominent issues under the HITECH Act and is by no means a comprehensive review of this lengthy and complex Act. For questions and additional guidance on the HITECH Act, contact your Fox Rothschild attorney or the authors of this Alert. New Privacy and Security Requirements * Security Breach Notification Requirements: Security breach notification requirements under the HITECH Act go into effect 30 days after the date that interim final regulations are promulgated, which will be no later than 180 days after the date of enactment of the HITECH Act (August 16, 2009). Covered entities, business associates and vendors who handle personal health records are required to abide by breach notification requirements. Violations of this requirement by vendors would be treated as an unfair and deceptive act or practice in violation of the Federal Trade Commission Act. If a breach affects more than 500 individuals of a particular state, notice also must be provided to prominent media outl

Physician groups press FTC for exemption from Red Flag Rules With a May 1 deadline for compliance looming, the American Medical Association (AMA) has asked the Federal Trade Commission (FTC) to suspend the application of the Red Flag Rules to physicians and publish a new rule so that physicians have an opportunity to provide comments. In a March 9 letter to the FTC, AMA Executive Vice President Michael D. Maves wrote that the AMA "strongly believes that the FTC did not provide physicians with an opportunity to review and comment on this Rule." Controversy. Under the Red Flag Rules, which were finalized in October 2007 under the Fair and Accurate Credit Transactions Act (FACTA), financial institutions and creditors must develop and implement written identity theft prevention programs. FACTA provides a broad definition of "creditor" as "any entity that regularly extends, renews or continues credit." The FTC has interpreted this definition to include health care providers and physicians. The AMA and several other medical trade associations have taken the position that physicians were not intended to be subject to the Red Flag Rules, but the FTC has held firm in its interpretation, in spite of the objections. In a Feb. 4 letter to the AMA, the FTC reiterated its position that "the plain language and purpose of the Rule dictate that health care professionals are covered by the Rule when they regularly defer payment for goods or services." The FTC also has taken the position that application of the Red Flag Rules to physicians will reduce the incidence of medical identity theft and will not impose a heavy burden on health care professionals. Rulemaking process. In addition to its claim that health care providers should not be classified as creditors, the AMA also has argued that the physician community was not informed that it would be subject to the Red Flag Rules.

California regulators have fined Kaiser Permanente Bellflower (Calif.) Medical Center $250,000 for failing to keep workers from peeking at the electronic health records of Nadya Suleman, who gave birth to octuplets at the hospital in January. The fine is the first under a new state law, which took effect in January, aimed at protecting patient medical records at hospitals and carries the maximum penalty allowable. Twenty-three unauthorized staff and physicians accessed the medical records, including some at other Kaiser facilities. Seven people viewed the records more than once, according to the California Public Health Department, which licenses hospitals in the state. Kaiser fired one person who peeked at Suleman's records, 14 others resigned and eight were disciplined.

Privacy and civil liberties advocates are urging lawmakers working on the forthcoming economic stimulus package to ensure that any language to spur adoption of electronic medical records includes meaningful security safeguards. The American Civil Liberties Union, Consumer Action, the National Association of Social Workers, Patient Privacy Rights and others sent letters to House Speaker Nancy Pelosi, Senate Majority Leader Harry Reid and President-elect Barack Obama Wednesday asking them to ensure individuals can control the use of their medical records and protect them from what they believe is a thriving industry of firms that share and sell medical data. "We all want to innovate and improve health care, but without privacy our system will crash as any system with a persistent and chronic virus will," Patient Privacy Rights executive director Ashley Katz said at a Capitol Hill briefing. Katz said her group has been pleased with progress that the House Energy and Commerce, and Ways and Means committees made last year.

"BlueCross and BlueShield of Tennessee is still scrambling to figure out how much of its members' personal information was put at risk in an Oct. 2 data breach in which 57 hard drives were removed from computer servers at a plan office in Chattanooga, according to a plan spokeswoman. In a telephone interview, Blues spokeswoman Mary Thompson said there were no signs of forced entry and the drives, which Thomson said were between the size of a large book and an 8-track tape cartridge, were taken from a set of active servers in a data storage cabinet. The removal, termed a theft by the plan, was not discovered until Oct. 5, Thomson said"

57 hard drives stolen from active servers and no one noticed? No sign of forced entry? Hmmmm.