According to the New York Times, Bellevue Hospital Center patient Craig Spencer, the first New Yorker to be infected with Ebola, is scheduled to be released today. And while the intense reporting about Ebola has subsided, perhaps indicating a lowering of the perceived threat of Ebola spreading further in the U.S. (although many continue to be under surveillance) companies should remain vigilant and be sure they are prepared. To that end, the agency responsible for enforcing the HIPAA privacy and security regulations, the Office for Civil Rights, issued a bulletin – HIPAA Privacy in Emergency Situations.

In emergency situations, uncertainty and a lack of preparedness can inhibit a health care provider or health plan’s ability to act. That uncertainty can include concerns about whether certain information can be used or disclosed. The OCR’s Bulletin provides helpful guidance for providers and plans, as well as business associates, so that they can be prepared to act in accordance with the HIPAA privacy requirements, which the Bulletin affirms is not suspended during a public health or other emergency. The Bulletin reminds covered entities and business associates that “protected health information” CAN be disclosed in connection with treatment without the authorization of the individual. It also provides a short summary of the rules for making disclosures in connection with certain public health activities, such as disclosures to public health authorities.

Responding to media inquiries is a significant concern for providers, and the bulletin addresses that. It reiterates that a hospital or other health care facility can, upon request for information about a particular patient by name, disclose limited facility directory information to acknowledge an individual is a patient at the facility and provide basic information about the patient’s condition in general terms. This is the case so long as the patient has not objected to or restricted the release of such information or, if the patient is incapacitated, the disclosure is believed to be in the best interest of the patient and is consistent with any prior expressed preferences of the patient. However, except in limited cases, affirmative reporting to the media or the public at large about an identifiable patient, or the disclosure to the public or media of specific information about treatment of an identifiable patient, may not be done without the patient’s written authorization (or the written authorization of the patient’s personal representative).

The Bulletin also reminds the reader that HIPAA only applies to covered entities and business associates. It does not apply to employers. However, employers need to be mindful of other federal and state laws that protect the confidentiality of employee medical information, such as the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

The Bulletin could provide a helpful training or refresher resource for covered entities and business associates to help their workforce members be prepared for all emergency situations, not just another Ebola case.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.