At first glance, this seems to require notification for each use or disclosure that is inconsistent with HIPAA.  However, notification is only needed where the breach is of “unsecured” PHI.  This means only the disclosure of PHI that was not encrypted is subject to the notification requirements.  Unfortunately, most smaller providers are not utilizing encryption methodologies in their transmissions of PHI. Therefore, when they have a security incident, they must move on to the next part of the analysis. Additionally, notification is only required when the disclosure meets the definition of a “breach” of PHI.  The Office of Civil Rights (OCR), the enforcement agency that drafted the regulations, recognized that there was no need for notification in every instance of improper use or disclosure.  OCR noted that failing to include a harm threshold would diminish the impact of notifications received by individuals.  If a threshold was not included individuals might…       Read More

A case out of New York highlights the importance of employers protecting their computers and electronically stored data from disgruntled and departing employees.  In ­MidAmerica Productions v. Derke, 2010 NY Misc.  LEXIS 6676, employees who left their employer to start a competing business were accused of improperly accessing e-mail accounts, and then installing software to delete files on the employer’s computer, prior to their departure.             While there are federal and usually state statutes, that can be used to address such conduct, the damage is often done by the time the acts are discovered.  The problem can be exacerbated when employees have company issued laptops that provide access to files.  There are also situations when an employee is fired, and on their way out the door they download files, erase the hard drive or commit other acts of computer sabotage because their access to the computer system has not been…       Read More

Today’s healthcare industry is becoming increasingly more computerized.  With the advent of PDAs, smart phones, and lap tops, the occurrence of security breaches has dramatically increased across all sectors of healthcare. One of the more common issues being faced by large and small covered entities alike is what to do in the event one of these items is lost or stolen. The Health Information Technology for Economic and Clinical Health (HITECH) Act, enacted as part of the American Recovery and Reinvestment Act of 2009, was signed into law on February 17, 2009 and became effective September 23, 2009.  The HITECH Act includes a breach notification requirement that requires covered entities and their business associates to provide notification to multiple parties following a breach of unsecured protected health information. Whenever any electronic device is lost or stolen, the covered entity likely has a security incident on their hands that may breach their…       Read More

In an interesting settlement, mainly because of some unusual facts, Dresser Rand Company settled a religious discrimination lawsuit with the EEOC for $110,000.  It seems a Dresser Rand employee, who is a Jehovah’s witness, had a religious objection to working on weapons of war.  The employee declined to work on a part, which was to be used on a submarine.  He asked to be reassigned to work on a different piece of equipment.  His request was denied and he was fired.             EEOC brought the suit against Dresser Rand alleging religious discrimination for failing to accommodate the employee’s request.  An employer has a duty to accommodate an employee’s religious beliefs as long as the accommodation is not an undue hardship.             Whether or not to make an accommodation can be a difficult decision.  Often times, it can seem as if the employee’s request for accommodation is not legitimate.  You are concerned…       Read More

It may not look or feel like it, particularly on a day when the forecasters are calling for rain, but most of Georgia is in an extreme drought.  WABE in Atlanta reported today that Lake Lanier will probably be 15 feet below full pool by the end of November.  In 2007, Lake Lanier was 18 feet below full pool.  The difference this year is the drought is focused below Lake Lanier instead of being centered on it the way it was in 2007.   Georgia’s, continuing series of droughts (is this the new normal?), even droughts that do not raise the type of public concern generated in 2007, show an ongoing need to address the State’s water supply.  Conservation and new sources of water are each art of the solution.  New sources can be the better utilization of existing supplies by storing water in reservoirs during times higher flow, or…       Read More

In Virginia Mason Hospital, 357 NLRB No. 53, the National Labor Relations Board recently found that a Seattle hospital violated its duty to bargain under the National Labor Relations Act when it implemented a communicable disease policy that required nurses who refused to be immunized against influenza to wear a mask. The Hospital unilaterally adopted its flu prevention policy without affording the nurse’s union an opportunity to bargain concerning the decision to implement the policy and its effects. The Hospital contended that it did not have to bargain with the union over the policy because the policy went to the Hospital’s “core purpose” and was exempt from mandatory bargaining under Peerless Publications, 283 NLRB 334 (1987). The employer operates an acute care hospital, with approximately 600 registered nurses among its approximately 5,000 employees.  The Hospital amended its “Fitness For Duty” policy to require its entire workforce to be immunized against the…       Read More

Several recent articles acknowledge that Lake Lanier is falling to levels not seen since 2007.  See here.  Yet the public does not perceive that North Georgia is experiencing drought conditions because there have not been the extended  hot, dry spells of more recent droughts.  In general, the periodic rain in north Georgia has kept the public unaware.  The falling water levels and the inattention demonstrate the continuing need to address Georgia’s water supply issues.  In addition to conservation measures, there are three major water supply reservoirs being discussed in the Chattahoochee and Etowah basins.  By storing water when it is available and augmenting that stored water with water from the Tennessee River, when available, will provide a certain level of drought protection not currently available to those basins.