HEALTH REFORM: Four Key Areas of the New HIPAA Privacy Regulations

by Epstein Becker & Green
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On January 25, 2013, the Health Insurance Portability and Accountability Act ("HIPAA") regulations (the "Omnibus Rule") implementing the statutory amendments under the Health Information Technology for Economic and Clinical Health Act ("HITECH Act") were published in the Federal Register.[1] (The Omnibus Rule was initially released on January 17, 2013.) In addition to a number of administrative requirements (such as the requirement that a Covered Entity[2] modify its Notice of Privacy Practices), the Omnibus Rule likely is to have its greatest impact in the four areas discussed below. Compliance with all aspects of the Omnibus Rule is critical; however, the four areas discussed below may have the greatest impact (in terms of privacy compliance) in the health care industry. This health reform alert focuses on those key areas of the Omnibus Rule.

1. Potential Increase in Breach Notifications

The Omnibus Rule[3] replaces the current "significant risk of harm" standard with a "low probability of compromise" standard for determining whether a security incident is reportable and, therefore, likely will result in substantially more breach notifications. Similar to the Interim Final Rule,[4] security breaches involving 500 or more individuals must be reported to the Secretary of the U.S. Department of Health and Human Services ("HHS") immediately (concurrently with notification of the individuals). A security breach involving less than 500 individuals must be reported to the Secretary of HHS within 60 days following the end of the year in which the breach occurred.

However, under the new standard, there is presumption that any unauthorized use, disclosure, or access to protected health information ("PHI") is a reportable breach. Thus, the covered entity and/or business associate must provide notice of an unauthorized use, disclosure, and/or acquisition of PHI absent a finding that there is a "low probability that the [PHI] has been compromised." For example, as described in the preamble to the Omnibus Rule ("Preamble"), the inappropriate mailing of Explanation of Benefits ("EOB") data consisting of names, dates of service, and amounts paid would be a reportable breach, absent other mitigating factors. The Preamble notes that this new standard is intended to address the Secretary of the HHS's concern that "some may have interpreted the risk of harm standard in the interim final rule as setting a much higher threshold for breach notification than [HHS] intended to set."

Table 1 (below) compares the factors used to conduct the risk analysis under the new and standards that were included in the Interim Final Rule.

Table 1 - Comparison of Omnibus Risk Analysis Standard to Interim Risk of Harm Standard

Rule

Omnibus Rule (new)

Interim Final Rule (old)

Standard

Covered entities and business associates must report unless they deem there is low probability that the PHI has been compromised.

Covered entities and business associates report where an incident "compromises the security or privacy of the protected health information" such that the incident "poses a significant risk of financial, reputational, or other harm to the individual." OMB Memorandum M–07–16

Factors

  1. The nature and extent of the PHI involved, including the types of identifiers and the likelihood of re-identification;
  2. The unauthorized person who used the PHI or to whom the disclosure was made;
  3. Whether the PHI was actually acquired or viewed; and
  4. The extent to which the risk to the PHI has been mitigated.
  1. Nature of the data elements breached;
  2. Ability of the organization to mitigate the risk of harm;
  3. Likelihood the information is accessible and usable;
  4. Number of individuals affected; and
  5. Likelihood the breach may lead to harm.

The use of the term "compromise," within the Omnibus Rule, highlights the difference between the old and new standard: Compromise cannot be simply equated with risk of harm. The new standard requires an analysis as to whether the security incident will give rise to a disclosure contrary the HIPAA Privacy Rule requirements (the "Privacy Rule"),[5] including the minimum necessary standard. The Preamble emphasizes that this "new" risk analysis is different than the risk-of-harm analysis that was used previously to determine whether notification was appropriate.

In the past, when deciding whether a breach was reportable under the Interim Final Rule, covered entities and business associates asked the following question: "Is there significant risk of harm?" Under the Omnibus Rule, this question will be replaced with, "Is there a low probability of compromise?" The Omnibus Rule identifies four factors that must be addressed during the covered entity/business associate's risk analysis. However, a covered entity/business associate may elect to notify without conducting a risk analysis.

The first factor of the risk analysis requires a consideration of the "nature and extent of the PHI involved, including the types of identifiers" as well as the likelihood of re-identification. This is necessary because breaches involving limited data sets that do not contain birth dates and/or zip codes, which previously were not reportable, are now reportable under the Omnibus Rule. The Omnibus Rule requires the use of a new "low probability of compromise" risk analysis approach to determine whether a breach involving a limited data set must be reported (absent another explicit exception). Under this approach, determining that the risk of harm is low does not remove an incident from the reportable to the not-reportable category unless the probability of compromise also is low. For example, the loss of a dataset that includes HIV status associated with a random integer used for reference (which could not be reasonably used to identify the affected individuals) may still require notification under the "low probability of compromise standard" because of the heightened sensitivity of the PHI involved.

The second factor under the new standard requires that the covered entity and/or business associate develop a profile and assess the capabilities of the unauthorized recipient of the PHI (e.g., professional, legal, technical skill, etc.). This analysis presumably would entail considering specific facts about the person or persons that either restrict or enhance the ability of the unauthorized person to exploit (compromise) the PHI.

An example from the Preamble provides that if information containing dates of health care service and diagnoses of certain employees was impermissibly disclosed to an employer, the employer may be able to determine that the information pertains to specific employees based on other information available to the employer, such as dates of absence from work. This would constitute a more than low probability of compromise.[6]

The third factor allows for the possibility of establishing that PHI, once re-secured, was never actually copied, used, viewed, or otherwise compromised. The classic scenario, cited by HHS on numerous occasions, involves the loss of a laptop that is subsequently re-acquired. In this instance, the covered entity and/or the business associate may rely on a forensic analysis to establish that PHI on the computer was never accessed, viewed, acquired, transferred, or otherwise compromised. Based on such an analysis, the covered entity and/or business associate may reasonably determine that the information was not actually acquired by an unauthorized individual even though the opportunity existed.

The fourth factor considers the extent to which the risk to PHI has been mitigated. For example, a covered entity and/or business associate may rely on the assurances of an employee, affiliated entity, business associate, or another covered entity that the entity or person destroyed information it received in error. However, the Preamble cautions that "assurances from certain third parties may not be sufficient."

As in the Interim Final Rule related to breach reporting, the Omnibus Rule maintains the following three exceptions to breach whereby a covered entity or business associate may conclude that no breach has occurred without having to conduct a risk analysis:

  • The unintentional access, use, or disclosure of PHI by a person acting under the authority of the covered entity and/or business associate (where the access, use, or disclosure) was done in good faith and within the course and scope of relationship;
  • The inadvertent disclosure from one person authorized to access, use, or disclose PHI occurs within the same facility, operated by covered entity or business associate, and the person to whom the information was disclosed is similarly situated; and
  • The unauthorized disclosure of PHI where the person cannot reasonably retain the information.[7]

By definition, PHI encrypted using an approved methodology cannot be accessed, used, or disclosed (assuming the encryption key has not been otherwise compromised). While the method prescribed for securing information remains the same, the software and hardware that meets this standard periodically changes. New software and hardware becomes certified and other software and hardware loses certification because of security vulnerabilities (refer to http://csrc.nist.gov/groups/STM/cmvp/documents/140-1/140val-all.htm for more information). Similarly, PHI located on a device destroyed using an approved methodology is also not reportable.

The Omnibus Rule is effective March 26, 2013, but covered entities and business associates have until September 23, 2013, to comply with the new risk analysis requirements in the event of a breach.

2. Imposition of New Restrictions on Using PHI for Marketing Purposes

Among the many privacy law changes brought by the Omnibus Rule are changes to the Privacy Rule relating to the use of PHI in marketing communications. The Privacy Rule has always required covered entities to obtain written authorization from individuals before disclosing PHI in a marketing communication, subject to certain exceptions relating to treatment, health care operations, and certain other activities. The Omnibus Rule, by expanding the definition of "marketing" to include some communications that previously were excluded from the definition, significantly expands the range of marketing activities that require a prior written authorization. Because "marketing" encompasses such a broad range of activities, these changes should be considered among the most significant of the recent changes to the Privacy Rule and will have widespread impact on the business practices of health plans, health care providers, and their business associates.

Modification of General Exclusion for Communications Relating to Treatment and Health Care Operations

The Privacy Rule defined "marketing" broadly to include any communication about a product or service that encourages recipients of the communication to purchase or use the product or service. However, excluded from the broad definition were certain communications relating to treatment, health care operations, as well as certain other activities, such as care coordination. The Omnibus Rule significantly modifies the marketing definition by limiting these exceptions to only those communications that were NOT made in exchange for remuneration from a third party (referred herein as "subsidized communications"). Among the types of subsidized communications that will now require individual authorization are those communications directly (or indirectly) paid for by third parties (e.g., being paid by a drug manufacturer to communicate information about a new drug).

Consistent with other provisions in the Omnibus Rule that impose heightened responsibilities on business associates, the marketing restriction on subsidized communications clearly applies to both business associates and covered entities. As explained in the Preamble:

Even where a business associate of a covered entity, such as a mailing house, rather than the covered entity itself, receives the financial remuneration from the entity whose product or service is being promoted to health plan members, the communication is a marketing communication for which prior authorization is required.[8]

However, the restriction for subsidized communications does not apply in all cases. There are two types of circumstances where subsidized communications will not fall under the marketing definition. The first type involves circumstances where the "remuneration" provided in exchange for the communication is an in-kind benefit (e.g., distributing marketing materials to patients that were provided, at no cost, from a third party); and the second type involves circumstances where payments are made for a non-marketing purpose, such as to implement a treatment or care coordination program, and the communication is about the program itself. Regarding the latter, the Preamble emphasizes the importance of the distinction between subsidized communications made for marketing and non-marketing purposes:

We continue to emphasize that the financial remuneration a covered entity receives from a third party must be for the purpose of making a communication and such communication must encourage individuals to purchase or use the third party's product or service. If the financial remuneration received by the covered entity is for any purpose other than for making the communication, then this marketing provision does not apply.[9]

Additionally, it's important to note that the Privacy Rule's marketing requirements apply only to communications that involve the use or disclosure of PHI, such as communications directed at specific individuals or groups based on their health or health plan membership status. If the communication does not involve the use or disclosure of PHI, then the marketing restriction in the Privacy Rule will not apply.

Practical Tip

Based on the marketing requirements and exceptions described above, an analysis of whether a subsidized communication is subject to the new marketing restrictions should include the following questions, among others:

  • Does the communication involve the use or disclosure of PHI?
  • Is the communication intended to encourage the purchase or use of a product or service (as opposed, for example, to communications intended to inform individuals about the implementation of a new product or service)?
  • Will the remuneration from the third party be a financial payment or an in-kind payment?

Other Exceptions to Marketing

The Omnibus Rule also creates a separate exclusion from the definition of "marketing" for prescription drug refill reminders. But unlike the general exclusion for marketing communications that relate to treatment, this exclusion covers subsidized communications relating to refills so long as the payment received by the covered entity is "reasonably related to the covered entity's cost of making the communication." Refill reminders are broadly interpreted as including communications about generic equivalents, communications encouraging individuals to take their prescribed medications, and communications relating to all aspects of a self-administered drug delivery system, such as insulin pumps.

Content of the Authorization for Subsidized Communications

When a subsidized communication requires an individual's written authorization, covered entities (or their business associates) will need to include certain information on the authorization form relating to the remuneration that will be received. Specifically, the authorization must:

  • disclose the fact that the communication is subsidized by a third party,
  • describe the intended purpose of the authorization (i.e., why it is being sought), and
  • meet all other requirements generally applicable to authorizations required under the Privacy Rule.

However, the authorization required for subsidized communications does not need to disclose the specific products or services being marketed. As explained in the Preamble, an authorization that describes unspecified subsidized communications will be sufficient to meet the authorization requirements as long as all other authorization requirements are met.[10]

The new marketing requirements become effective on March 26, 2013; however, covered entities and business associates have until September 23, 2013, to come into compliance.

3. Potential Increase in Liability to Covered Entities for Acts of Business Associates

While the enforcement provisions of the Privacy Rule previously provided that a covered entity would be liable (in accordance with the federal common law of agency) for the acts or omissions of an agent (provided the agent was acting within the scope of its agency), an exception was made for business associates. Under this exception, a covered entity was not liable for the acts or omissions of business associates if the covered entity had: (1) complied with administrative safeguards as well as use and disclosure requirements with respect to the business associate, and (2) did not know of the pattern or practice of the business associate at issue and failed to act as required by the Privacy Rule.[11] The Omnibus Rule removes this exception, making covered entities liable for the acts of business associates, even where the covered entity has complied with its contractual obligations and had no knowledge of the wrongdoing.

Thus, under the Omnibus Rule, the threshold question will be whether the business associate is an "agent" as determined under the federal common law of agency. The Preamble makes clear that mere labels will not suffice for the analysis:

The terms, statements, or labels given to parties (e.g., independent contractor) do not control whether an agency relationship exists. Rather, the manner and method in which a covered entity actually controls the service provided decides the analysis.[12]

The Preamble further provides that the analysis of whether a business associate is an agent will be fact specific depending on factors such as:

(1) the time, place, and purpose of a business associate's conduct;

(2) whether a business associate engaged in a course of conduct subject to a covered entity's control;

(3) whether a business associate's conduct is commonly done by a business associate to accomplish the service performed on behalf of a covered entity; and

(4) whether or not the covered entity reasonably expected that a business associate would engage in the conduct in question.[13]

The Preamble also notes that the authority of a covered entity to "give interim instructions or direction" is the type of control that will be a distinguishing factor in the analysis. For example, if the covered entity retains the authority to dictate how a business associate must make information available to the covered entity in order to fulfill an individual's request for access, an agency relationship may exist. Although the Preamble also notes that there are some business associate relationships that are unlikely to create an agency relationship (e.g., accreditation services), other business associate relationships (and subcontractor relationships of for business associates) will have to be evaluated on a case-by-case basis.

The agency relationship also permeates the requirements of breach reporting, as the Preamble states that timing for breach notification when the breach involves a business associate is dependent on whether the business associate is an agent of the covered entity. Specifically, the Preamble provides:

With respect to timing [for breach notification], if a business associate is acting as an agent of a covered entity, then, . . . the business associate's discovery of the breach will be imputed to the covered entity. In such circumstances, the covered entity must provide notifications . . . based on the time the business associate discovers the breach, not from the time the business associate notifies the covered entity. In contrast, if the business associate is not an agent of the covered entity, then the covered entity is required to provide notification based on the time the business associate notifies the covered entity of the breach.[14]

Because of the implications for covered entities, when revising business associate agreements to comply with the Omnibus Rule, covered entities and business associates will need to assess current relationships; evaluate whether such relationships are agency relationships and, if so, whether they can be structured to mitigate that implication; and whether the Privacy Rule analysis has other implications for the underlying business arrangement.

4. Direct Liability to Business Associates

In addition to explicitly including e-prescribing gateways and other electronic health record vendors as business associates, the Omnibus Rule makes clear the direct liability that flows to business associates as a result of the modifications to the HITECH Act.

The Preamble states that a business associate is directly liable for:

  • uses and disclosures of PHI that violate its business associate agreement or the Privacy Rule;
  • failing to disclose PHI when the Secretary of the HHS requires it to do so, or when an individual requests an electronic copy of PHI;
  • failing to make reasonable efforts to limit PHI to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request; and
  • failing to enter into business associate agreements with subcontractors that create or receive PHI on their behalf.[15]

As with current law, business associates also face contractual liability for the obligations included in a business associate agreement. In this regard the Preamble states, "As was the case under the Privacy Rule before the HITECH Act, business associates remain contractually liable for all other Privacy Rule obligations that are included in their contracts or other arrangements with covered entities."[16]

Notable among the above list is the requirement that business associates enter into business associate agreements with subcontractors. The Omnibus Rule extends the business associate designation to subcontractors of business associates by explicitly expanding the definition of "business associates" to include "a subcontractor that creates, receives, maintains, or transmits [PHI] on behalf of the business associate."[17] The Omnibus Rule defines a subcontractor as any person or entity "delegated a function, activity, or service the business associate has agreed to perform for a covered entity or business associate."[18] As a result, as noted above, business associates are required to enter into business associate agreements with subcontractors and can face direct liability for the failure to do so. Presumably, business associates will also face liability for failing to enter into a business associate agreement with a covered entity—an exposure that previously rested solely with the covered entity.

Those business associates that are already operating under a business associate agreement are granted a grace period to modify existing agreements.

Covered entities and business associates will be deemed in compliance with the new standard if: (i) prior to January 25, 2013, the entities have entered into and are operating under a business associate agreement that has met the requirements of the Privacy Rule that were in effect on that date; and (ii) the contract or arrangement is not modified or renewed from March 26, 2013, to September 23, 2013.

Such deemed compliance exists until the earlier of (i) the date the contract or arrangement is renewed or modified after September 23, 2013, or (ii) September 22, 2014.

In all other cases, business associates and covered entities have until September 23, 2013, to be in compliance with the business associate requirements of the Omnibus Rule.

One of the biggest operational requirements extended to business associates is the requirement that business associates implement appropriate security measures to protect electronic PHI—security measures previously applying to covered entities and described in the Security Rule. As these are direct requirements for business associates, business associates can face direct liability for failure to meet these requirements. The Omnibus Rule provides that business associates must:

  • meet the requirements of 45 C.F.R. § 164.306 related to general security requirements necessary to protect electronic PHI;
  • meet the requirements of 45 C.F.R. § 164.308 related to applying appropriate administrative safeguards (including performing a risk analysis to identify potential risks and vulnerabilities to the confidentiality, integrity, and security of electronic PHI);
  • meet the requirements of 45 C.F.R. § 164.310 related to implementing appropriate physical safeguards to protect electronic PHI;
  • meet the requirements of 45 C.F.R. § 164.312 relating to implementation of appropriate technical safeguards to protect electronic PHI;
  • implement appropriate organization requirements mandated by 45 C.F.R. § 164.314 to contractually obligate subcontractors to meet the above requirements; and
  • develop appropriate policies and procedures to implement the requirements of the above security requirements.

Although some business associates may have anticipated this new requirement based on the HITECH Act, many may have been waiting for the implementation of regulations prior to adopting these requirements. Moreover, as noted above, because the definition of "business associate" includes subcontractors to business associates—all subcontractors handling electronic PHI must meet the above security requirements as well.

Conclusion

The items mentioned in this health reform alert likely represent areas that will have the most significant impact on business arrangements. Accordingly:

  • The new breach reporting standards will need to be incorporated into policies and procedures, and, if, as expected, the new standards result in additional reporting, organizations will need to anticipate the additional costs associated with this reporting.
  • Changes to the marketing rules will require not only a change to policies and procedures but a thoughtful analysis of current business relationships.
  • In determining the impact of increased potential exposure for acts of business associates, covered entities and business associates will need to evaluate their business associate arrangements, assess risks and exposure, and take steps to mitigate those risks as much as possible.
  • Business associates will need to undertake the time-consuming process of ensuring that all subcontractors have entered into, and understand the implications of, business associate relationships.

For more information about this issue of IMPLEMENTING HEALTH AND INSURANCE REFORM, please contact one of the authors below or the member of the firm who normally handles your legal matters.

Patricia M. Wagner
Member of the Firm
Epstein Becker Green
Washington, D.C.
(202) 861-4182
PWagner@ebglaw.com

Adam C. Solander
Associate
Epstein Becker Green
Washington. D.C.
(202) 861-1884
ASolander@ebglaw.com

Robert Hudock
Member of the Firm
Epstein Becker Green
Washington. D.C.
(202) 861-1893
RHudock@ebglaw.com

Ross K. Friedberg
Associate
Epstein Becker Green
Washington. D.C.
(202) 861-1845
RFriedberg@ebglaw.com



ENDNOTES

[1] Modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules under the Health Information Technology for Economic and Clinical Health Act and the Genetic Information Nondiscrimination Act; Other Modifications to the HIPAA Rules; Department of Health and Human Services, Office of the Secretary (45 C.F.R .Parts 160 and 164). 78 Fed. Reg. 5566 (Jan. 25, 2013).

[2] 45 C.F.R. 160.103.

[3] Id.

[4] 74 Fed. Reg. 42740 (Aug. 24, 2009).

[5] 45 C.F.R. §§ 160, 164.

[6] 78 Fed. Reg. 5643.

[7] 78 Fed. Reg. 5639.

[8] 78 Fed. Reg. 5597.

[9] Id. at 5596.

[10] Id.

[11] 45 C.F. R. § 160.402(c).

[12] 78 Fed. Reg. 5581.

[13] Id.

[14] Id. at 5655.

[15] Id. at 5591.

[16] Id. at 5591-92.

[17] 45 C.F.R. 160.103.

[18] 78 Fed. Reg. 5573.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.