What does it say when a HIPAA lawyer with years of experience says he didn’t know the FTC has a health breach notification rule?
Seen on Jeff Drummond’s blog:
” The U.S. Federal Trade Commission issued a policy statement this week confirming that connected devices and health apps that use or collect consumers’ health information must notify users and others when that data is breached. Failure to comply, the agency said, could result in a penalty of up to $43,792 per violation per day.”
What’s getting the FTC’s attention is the fact that so many health apps and IOT devices collect so much health information, yet those apps and device makers are not HIPAA-covered entities. And those apps and devices are exploding in popularity, usage, and ubiquity. So the FTC is going to start enforcing its 10-year-old (but previously never enforced) data breach notification rule. They issued a statement to that effect here.
Wait, the FTC has a health data breach reporting rule? I never knew that! Anyway, it’s here; I’ll be reading it over the weekend, and will likely report back on the overlap (and lack of overlap) between it and the HIPAA data breach reporting requirements.
The rule went into effect in 2009, so one thing that tells me is that FTC hasn’t done a great job in reminding entities of the rule or enforcing it.
This blogger did try to get the FTC to get involved in a breach notification case but had filed it under Section 5 of the FTC Act as deception and unfairness not to notify patients that their data were up on a dark web torrent site for everyone to grab. The FTC had not done anything in that case.
I look forward to reading Jeff’s commentary.