On October 23, 2019, the Stop Hacks and Improve Electric Data Security (“SHIELD”) Act goes into effect and significantly modifies the existing New York State breach notification requirements, including the addition of new requirements for covered entities (e.g., all health care providers and health plans) to report HIPAA breaches to the New York State Attorney General, as well as the Federal Department of Health and Human Services, Office of Civil Rights (“OCR”). Other significant provisions of the SHIELD Act include the following:
- The definition of “private information,” which triggers notification and reporting obligations, is expanded to include, among other things, credit/debit card numbers (even if a password is not involved); biometric information and email addresses in conjunction with passwords.
- There is additional information required to be included in breach notification letters (i.e., notification information for state agencies).
- A new exception allows entities to avoid certain of the notification and reporting obligations if they can document that a potential breach was an inadvertent disclosure and it is unlikely that individuals will be harmed.
- Entities not already subject to information security laws (e.g., HIPAA, Gramm-Leach-Bliley Act) are required to implement information security programs.
- At the very least, the SHIELD Act will require New York entities to: (1) evaluate their security incident response protocols to include the new requirements; (2) implement information security programs if they are not already subject to information security laws; and (3) report HIPAA breaches (even if no “private information” is involved) to the New York State Attorney General within five (5) days of making a report to the OCR.
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If you have any questions about this alert, please contact a member of our Health Care Practice Group or the Garfunkel Wild attorney with whom you regularly work.
Garfunkel Wild Introduces Complimentary Webinar Series “Successfully Navigating Legal Challenges in Nursing Facilities”
Operating a nursing facility in the United States, including in New York, has become quite challenging. If not handled correctly, nursing facilities, their residents, staff and operators face substantial exposure, including risks to health and safety, civil liability and potential criminal exposure. We will provide listeners with practical advice to successfully address common challenges and avoid adverse consequences.
Fraud and Abuse – Lessons from Esformes Case
Wednesday, September 18, 2019
12:00 PM – 1:00 PM EDT
Speaker: John Martin
In 2006, Philip Esformes was required to pay a $15.4 million settlement to the government, but by 2016 Esformes’s businesses were booming again. He owned 30 Miami-area skilled nursing and assisted living facilities, flew in a private jet, and was worth tens of millions of dollars. But on July 22, 2018, Esformes was jailed, held without bail, and eventually convicted of multiple felony charges, and ordered to forfeit much of his wealth. He now faces a likely sentence that will jail him for decades. This Webinar will look at the Esformes case to see if there are any lessons that can be taken from the historic downfall of a nursing home empire. We will review the conduct that led to Esformes’ conviction, the failure of his defense, and the crimes of conviction.
After completing the program participants will know:
- What the biggest threats from government prosecutors are to nursing home operators
- What attracts government attention to nursing homes
- What nursing homes and their owners can do to avoid being the next Phillip Esformes
Click Here to View Webinar
2019 ASC and Healthcare Management Pre-Symposium Webinar: Resolving Payer Obstacles
Thursday, August 8, 2019
12:00 PM – 1:00 PM EDT
Speakers: Garfunkel Wild Partner-Directors Debra A. Silverman and Roy W. Breitenbach, Grassi Healthcare Advisors, LLC Senior Manager Alicia Shickle
Garfunkel Wild Partner-Directors Debra A. Silverman and Roy W. Breitenbach will be joined by Grassi Healthcare Advisors, LLC Senior Manager Alicia Shickle to present a complimentary webinar entitled “Resolving Payer Obstacles,” Thursday, August 8, 2019 from 12:00 PM – 1:00 PM EDT. Providers are finding it increasingly difficult to administer and maximize the reimbursement available through their payer contracts. This webinar will discuss practical tools and strategies that providers can adopt to best overcome these obstacles.
Click Here To View Webinar
Garfunkel Wild’s Legal Alert “DOH Revised ASC Policies” was referenced in the Becker’s ASC Review article “New York imposes stricter policies for freestanding ASC developments — 5 things to know.”
Becker’s ASC’s July 24, 2019 article lists the five things to know regarding the New York State Department of Health (“DOH”) revised ambulatory surgery center (“ASC”) Certificate of Need Policy requiring a closer review of the financial impact that a new freestanding ASC can have on the continued availability of essential community health care services in rural areas.
Click Here to read the Becker’s ASC Review article.
Click Here to read Garfunkel Wild’s Legal Alert.
About Garfunkel Wild
Garfunkel Wild was founded almost 40 years ago with a single purpose in mind – attend to the specific business and legal needs of our clients in the health care industry. With nearly 80 attorneys representing more than 60 hospitals plus health care systems and other health care facilities, organizations and practitioners, Garfunkel Wild has kept this focus. The firm has offices in New York, Connecticut, and New Jersey. For more information, visit www.garfunkelwild.com.
On July 11, 2019, the Appellate Division, Third Department, in a series of three criminal cases, significantly limited the authority of the NYS Justice Center for the Protection of People With Special Needs (“JC”) Special Prosecutor. In the lead case, People v. Hodgdon, the Third Department held that the JC Special Prosecutor did not have independent prosecutorial authority apart from a district attorney and that a JC Special Prosecutor may only act with the knowing written consent of a district attorney who retains the ultimate responsibility for the prosecution. The court further held that the authority of the Special Prosecutor is subordinate to that of a district attorney and as such, the Special Prosecutor is limited by any choices made by a district attorney.
The decision has state-wide implications and will change current practices. The JC Special Prosecutor may no longer independently threaten criminal prosecution as the ultimate decision of whether to prosecute must be made by a district attorney and the district attorney must take ultimate responsibility for the prosecution. Whether this reduces the number of criminal cases emanating from JC investigations remains to be seen, but the additional involvement of a district attorney provides welcome independent oversight of all future JC prosecutorial decisions.
Click Here to download the Legal Alert.
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If you have any questions about this alert, please contact a member of our Discharge Planning, Patient Rights and Elder Law Group or the Garfunkel Wild attorney with whom you regularly work.