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Settlement Reached in Excellus Class Action Data Breach Lawsuit

Excellus Health Plan Inc., its affiliated companies, and the Blue Cross Blue Shield Association (BCBSA) have reached a settlement to resolve a class action lawsuit that was filed in relation to a cyberattack discovered in 2015. The attack involved the personally identifiable information (PII) and protected health information (PHI) of more than 10 million members, subscribers, insureds, patients, and customers.

The cyberattack was detected on August 5, 2015, by a cybersecurity firm that was hired to assess Excellus’s information technology system. The subsequent investigation by Excellus and cybersecurity firm Mandiant determined hackers had first gained access to its systems on or before December 23, 2013. Evidence was found that indicated the hackers were active within its network until Aug. 18, 2014, after which no traces of activity were found; however, malware had been installed which gave the attackers access to its network until May 11, 2015. On that date, something happened that prevented the hackers from accessing its network. It took Excellus 17 months from the initial intrusion to detect the security breach.

The HHS’ Office for Civil Rights (OCR) launched an investigation into the data breach and uncovered several potential violations of the HIPAA Rules, including security failures and the impermissible disclosure of the PHI of 9.3 individuals. The case was settled in January 2021 and Excellus agreed to pay a financial penalty of $5.1 million to resolve the HIPAA violations and to implement a corrective action plan to address the security failures and the alleged HIPAA non-compliance issues.

The lawsuit was brought against Excellus, Lifetime Healthcare Inc., Lifetime Benefit Solutions Inc., Genesee Region Home Care Association Inc., MedAmerica Inc., Univera Healthcare, and the Blue Cross Blue Shield Association, on behalf of all individuals affected by the data breach. Initially, the lawsuit sought monetary damages and injunctive relief; however, for several legal reasons, the court was unable to certify classes seeking monetary damages, and only certified a class for injunctive relief.

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The plaintiffs alleged the defendants had failed to implement appropriate security measures to ensure the confidentiality of PII and PHI, failed to detect the security breach for 17 months, and when the breach was detected, waited too long to notify affected individuals and then failed to provide sufficient information about how victims could protect themselves from harm. The lawsuit required the Excellus defendants and BCBSA to change their information security practices with respect to PII and PHI and to invest in information security. The Excellus defendants and BCBSA denied any wrongdoing and, to date, no court has determined the defendants have done anything wrong.

The Excellus defendants and BCBSA have agreed to cover reasonable attorneys’ fees, costs, and expenses as approved by the courts. The costs include a maximum of $3.3 million to cover attorneys’ fees and the reimbursement of expenses of no more than $1,000,000. Service awards of up to $7,500 will also be provided to class representatives.

Changes will be made to business practices regarding the safeguarding of PII and PHI which will cover the three years from the finalization of the settlement or the two years after each of the changes has been implemented. The information security requirements detailed in the settlement require the Excellus defendants and BCBSA to:

  • Increase and maintain a minimum information security budget
  • Develop a strategy and engage vendors to ensure records containing PII or PHI are disposed of within one year of the original retention period
  • Take steps to improve the security of its network, including the use of tools for detecting suspicious activity, authenticating users, responding to and containing security incidents, and document retention
  • Engage in an extensive data archiving program and provide plaintiffs with documentation confirming the extent, scope, and thoroughness of the archiving project
  • Provide the plaintiffs with copies of documents provided to OCR that demonstrate compliance with the OCR settlement and corrective action plan
  • Make an annual declaration attesting to compliance with each aspect of the items in the settlement, including the extent to which it has not been possible to comply with any of the items

If the settlement is agreed by the court – a hearing has been scheduled for April 13, 2022 – all plaintiffs and class members will be required to release all claims against the Excellus defendants and BCBSA for injunctive and declaratory relief. The settlement will not release any claims against the Excellus defendants and BCBSA for monetary damages.

Author: Steve Alder is the editor-in-chief of HIPAA Journal. Steve is responsible for editorial policy regarding the topics covered on HIPAA Journal. He is a specialist on healthcare industry legal and regulatory affairs, and has several years of experience writing about HIPAA and other related legal topics. Steve has developed a deep understanding of regulatory issues surrounding the use of information technology in the healthcare industry and has written hundreds of articles on HIPAA-related topics.