In Ingham Regional Medical Center v. U.S. (Jan. 6, 2020), the Court of Federal Claims compelled production of certain government investigatory documents that the Court found were not privileged work product prepared “in anticipation of litigation.” The Medical Center sued to recover payments for outpatient healthcare services performed in connection with DoD’s TRICARE program
HHS Jumps on the Cybersecurity Information Sharing Bandwagon; Third Circuit on Economic Loss as a basis for Negligence Claim; FTC workshop on Ransomware; German draft implementing law for GDPR revealed.
HHS Jumps on the Cybersecurity Information Sharing Bandwagon
Because of recent news reports confirming that cyberattacks against healthcare agencies have increased 125 % in the past five years, HHS is encouraging HIPAA Covered Entities and Business Associates to share information to combat future attacks.
HHS, based on authority from Executive Order 13591 and the Cybersecurity Information Security Act (CISA), is urging Covered Entities and Business Associates to join Information Sharing and Analysis Organizations (ISAOs) to share security threat and vulnerability information related to electronic protected health information (ePHI).
Ideally, ISAOs will provide a mechanism for sharing information bi-directionally “between HHS and the Health Care and Public Health (HPH) sector regarding cyber threats and will also provide outreach and education to the HPH sector.” This press release from HHS follows a similar measure by the Department of Homeland Security, which also encourages information sharing to mitigate the risk of cyberattacks.
In developing ISAOs in the health care sector, it is critical to consider three things:
- the standards and best practices for the creation of ISAOs to ensure that covered entities and business associates that participate gain the protections of such information sharing under CISA;
- the data that is shared in light of what is permitted under the HIPAA Privacy Rule; and
- how participation in an ISAO can support compliance with the HIPAA Security Rule.
Crowell & Moring is a leading expert in the creation of ISAOs and HIPAA compliance and can help stakeholders that seek to comply with HHS’s call to action to consider the intersection of these various legal frameworks