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Dianne J. Bourque

Member

[email protected]

+1.617.348.1614

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Dianne advises a variety of health care clients on a broad range of issues, including licensure, regulatory, contractual, and risk management matters, and patient care. As former in-house counsel to an academic medical center, a large part of her practice involves counseling researchers and research sponsors in matters related to FDA and OHRP regulated clinical research, including patient consent, access to and use of tissue and associated patient information, and the Institutional Review Board process. 

She also counsels health care clients and other business entities on a broad range of privacy and data security issues, including the HIPAA Privacy Rule and Security Standards, including requirements under HITECH and the HIPAA Omnibus Rule, 42 CFR Part 2, and state-imposed medical privacy laws. She regularly assists clients with data breach response and mitigation, the implementation of HIPAA-mandated policies and procedures, privacy audits, third-party requests for information, and review of HIPAA-related contracts and forms. She has successfully defended clients in both civil and criminal HIPAA enforcement actions and regularly assists clients with the management of data breaches and other losses of protected health information.

Before joining Mintz, Dianne was an associate staff attorney at the Lahey Clinic, where she provided general counsel services to medical, professional, and administrative staff. She also served as counsel to the Institutional Review Board, the Ethics Committee, the Intellectual Property and Technology Transfer Committee, and the Genetics Advisory Board. Before joining the Lahey Clinic’s legal staff, she worked in the research administration department. Her responsibilities included drafting a regulatory compliance manual detailing laws of concern in basic, clinical, and animal research, continually reviewing relevant regulations to ensure compliance for institutional programs, and researching and advising clients on a broad range of regulatory matters.

Dianne was the first Suffolk University law student to graduate with a concentration in Health Care and Biomedical Law. She formerly served as an adjunct professor at Stonehill College, teaching an undergraduate Health Care Law course.

Dianne is a contributor to the Mintz Health Law & Policy Matters blog as well as the Privacy & Security Matters blog.

Education

  • Suffolk University Law School (JD)
  • Suffolk University (MPA)
  • Boston College (BA)

Experience

  • Provided strategic counsel to a start-up medical application company that has devised a method to detect mild cognitive impairment as a precursor to more significant cognitive diseases.
  • Counseled a publically traded medical device company on risk management advice and helped them manage multiple significant adverse events following suspension of trial by the FDA.
  • Assisted our client, a manufacturer of smart, wireless prescription bottles, with structuring their patient interface to be consistent with privacy and data security laws and other regulatory issues.

Recognition & Awards

  • Chambers USA: Massachusetts – Healthcare (2015 – 2017)
  • Best Lawyers in America: Health Care Law (2020-2021)

Involvement

  • Regular guest lecturer, Cybersecurity Policy & Governance Program, Boston College Woods College of Advancing Studies

Recent Insights

News & Press

Events

Viewpoints

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The Department of Health and Human Services’ Office for Civil Rights (OCR) has announced that it will exercise its enforcement discretion for health care providers’ and their business associates’ noncompliance with the HIPAA rules with respect to their good faith use of online or web-based scheduling applications for scheduling COVID-19 vaccination appointments. OCR will not impose penalties for such noncompliance during the COVID-19 nationwide public health emergency.
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With a notably sharply worded opinion, the Fifth Circuit recently vacated over $4.3 million in penalties levied against the University of Texas M.D. Anderson Cancer Center (M.D. Anderson) by the Department of Health and Human Services (HHS) for a series of alleged HIPAA violations. The case stems from three separate incidents that occurred between 2012 and 2013. In two instances, M.D. Anderson workforce members lost unencrypted protected health information (PHI), while the third incident involved the theft of a faculty member’s laptop also containing unencrypted PHI. On appeal, the Fifth Circuit concluded that HHS’s civil monetary penalties order against M.D. Anderson was arbitrary, capricious, and contrary to law, vacating the penalties and pointedly criticizing the agency’s actions and arguments in this matter.

Beyond its harsh words for HHS, this opinion is notable for calling into question some longstanding HHS enforcement practices and interpretations of the HIPAA regulations. The opinion also makes clear that regulated entities should check the math when HHS levies a fine. Although limited in its precedential authority, the Fifth Circuit’s opinion, at the very least, gives HIPAA-regulated entities some new food for thought if faced with an HHS enforcement action.
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HIPAA Amendments and Other Trump Regulatory Actions on Hold

January 21, 2021 | Blog | By Dianne Bourque, Cassandra Paolillo

In the waning days of the Trump administration, the Office for Civil Rights (“OCR”) announced a number of new initiatives, including proposed HIPAA amendments, discussed here, and a very recent COVID-19 related Notice of Enforcement Discretion. Under the Notice of Enforcement Discretion, published on January 19, 2021, OCR announced that it would not impose penalties for non-compliance with HIPAA on covered entities making good faith use of online or web-based applications for COVID-19 vaccination scheduling. With the swearing in of President Biden, these and other regulatory initiatives, including all regulations that have been sent to the Office of the Federal Register, but not yet published, are to be withdrawn until a department or agency head appointed by President Biden reviews and approves the rule.
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HIPAA 2021 – What Can We Expect?

December 28, 2020 | Blog | By Dianne Bourque, Ellen Janos

As we’re all painfully aware, public health issues dominated 2020 and with the country’s attention focused on COVID-19 testing, status, transmission and care, HIPAA went mainstream. Health information became critical not only for health care providers, but for all manner of businesses, employers, property owners, and the national media. HIPAA – or more often than not “HIPPA” – was frequently touted in the news and on social media as the reason why COVID-related information could or could not be shared. As we head into 2021 with the pandemic raging on, the vaccination program underway, and a new administration taking over, here is a look at what we expect for “HIPPA” in 2021.
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The Department of Health and Human Services (HHS) is pushing ahead in its Regulatory Sprint to Coordinated Care with a new proposed rule, announced by HHS’ Office for Civil Rights on December 10, to modify the HIPAA Privacy Rule. This proposed rule follows HHS’ 2018 Request for Information on Modifying HIPAA Rules to Improve Coordinated Care, which sought to identify regulatory impediments to value-based care presented by HIPAA. With this proposed rule, HHS aims to “reduce burden on providers and support new ways for them to innovate and coordinate care on behalf of patients, while ensuring that [HHS] uphold[s] HIPAA’s promise of privacy and security,” according to HHS Deputy Secretary Eric Hargan. It would achieve these objectives through a variety of updates to the Privacy Rule, which we highlight in this blog post, along with initial reactions from our HIPAA privacy team.
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In the inaugural episode of Mintz’s Health Law Diagnosed, Dianne Bourque (Member, Mintz Health Law Practice) discusses why HIPAA is so engrained in our collective consciousness, how it was already equipped to handle public health emergencies, and the important changes made over the last several months to address the COVID-19 outbreak.
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US Health System Warned of Coordinated Ransomware Attacks

October 30, 2020 | Blog | By Dianne Bourque

US hospitals and healthcare facilities struggling to maintain normal operations during the COVID-19 emergency, were warned this week by the federal Cybersecurity and Infrastructure Agency (CISA), the Federal Bureau of Investigation (FBI) and the Department of Health and Human Services (HHS) of a “targeted and imminent cybercrime threat.” Specifically, CISA, FBI and HHS have credible information that malicious cyber actors are targeting hospitals and other health care providers with Trickbot malware, leading to ransomware attacks, data theft and significantly, the disruption of healthcare services during the pandemic.
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The U.S. Department of Health and Human Services (HHS) recently released a final rule further amending 42 CFR Part 2 regulations (Part 2) to allow greater sharing of patient records related to substance use disorder (SUD) treatment. For the past few years, we have seen a push to better align the incredibly strict requirements of Part 2 with HIPAA in order to increase care coordination and promote patient outcomes, particularly in light of the opioid epidemic, which has unfortunately escalated during the COVID-19 pandemic.   HHS has been inching toward the harmonization of Part 2 with HIPAA and has now adopted a final rule to address some of the confusion caused by differences between the two regulatory schemes. In conjunction with the release of the final rule, HHS also issued a helpful fact sheet explaining the major changes.
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Late last week, the Department of Health and Human Services’ Office for Civil Rights (OCR) issued guidance aimed at “making sure misconceptions about HIPAA do not get in the way of a promising COVID-19 response,” according to OCR Director Roger Severino. That “promising response” relates to emerging evidence that plasma from recovered patients (often referred to as “convalescent plasma”) may contain antibodies to SARS-CoV-2, the virus that causes COVID-19. Those antibodies could be useful in treating individuals who are sick with COVID-19. The OCR’s guidance addresses how health care providers may contact, in a HIPAA-compliant manner, recovered COVID-19 patients to provide them with information about donating blood and plasma to potentially help other COVID-19 patients.
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FDA Issues Guidance Addressing COVID-19 Interference with Clinical Trials

March 21, 2020 | Blog | By Dianne Bourque, Benjamin Zegarelli

In recognition of the widespread disruptions the COVID-19 crisis is posing to planned and ongoing clinical trials at sites throughout the United States (and global clinical sites), the Food and Drug Administration (FDA) issued on Wednesday, March 18 a guidance describing potential considerations for adjusting trial processes and, potentially, protocols and statistical analysis plans to mitigate any difficulties meeting trial objectives due to interference from the virus and related social and governmental restrictions. The document, titled FDA Guidance on Conduct of Clinical Trials of Medical Products during COVID-19 Pandemic, describes various potential complications, such as subjects being unable to travel to the trial site, loss of access to investigational product, or the need to screen subjects for COVID-19, as well as general recommendations for addressing them.
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News & Press

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Mintz Member Dianne J. Bourque was quoted in an article published by Bloomberg Law on privacy concerns associated with the federal government’s collection of personal information, including race and ethnicity information, to track Americans getting the COVID-19 vaccine.
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Mintz Member Dianne J. Bourque was quoted in an article published by Bloomberg Law on a cyberhack of the U.S. federal courts filing system. Specifically, she addressed why it may be particularly problematic for patients and health-care providers that are involved in litigation.
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In Bloomberg Law, Mintz Member Dianne Bourque commented on some of the state and federal privacy laws protecting patient data that Amazon will have to navigate with the launch of its new online pharmacy business.
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In Bloomberg Law, Mintz Member Dianne Bourque shared cybersecurity best practices for health care providers, particularly in light of recent ransomware attacks targeting hospitals across the country.
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Mintz Member Dianne Bourque was quoted in an article published by Bloomberg Law on privacy concerns with mobile fertility apps as they are not covered by the Health Insurance Portability and Accountability Act.
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Mintz Member Dianne Bourque was quoted in an article published by Bloomberg Law on privacy protections and related concerns as the federal government is working with states and private companies to allow immunization databases to share data as part of a COVID-19 vaccine distribution plan.
Press Release Thumbnail
Firm provides pro bono legal counsel to global health nonprofit on groundbreaking initiative to slow the spread of COVID-19 in the Commonwealth of Massachusetts.
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Mintz Member Dianne Bourque was quoted in an article published by the Washington Post on New York’s efforts to distribute tens of thousands of doses of anti-malarial drugs as an experimental, unproven treatment for seriously ill coronavirus patients.
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Mintz Member Dianne J. Bourque was quoted extensively in an article published by MedCity News on privacy considerations for individuals that opt to share their data with mobile health apps.
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Mintz Member Dianne Bourque appeared on Bloomberg Television’s “Bloomberg Technology” news program to discuss Google’s partnership with Ascension, the nation’s second-largest health system, which includes sharing the personal health data of tens of millions of patients. Ms. Bourque addressed the legality of the arrangement under the Health Insurance Portability and Accountability Act (HIPAA), compliance under the federal privacy law, and legal limitations for using the health data.

The full show is available here, and the segment featuring Ms. Bourque runs from 29:47 - 35:15.
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An article published by Wired detailed Google’s partnership with Ascension, the nation’s second-largest health system, which includes sharing the personal health data of tens of millions of patients. In the article, Mintz Member Dianne Bourque was quoted on the legality of the arrangement under the Health Insurance Portability and Accountability Act (HIPAA) and legal limitations for using the health data.
Mintz health care lawyer Dianne Bourque is quoted in this article, which addresses a host of state legislatures—often via consumer protection laws—are redefining what is considered a breach and how providers will need to handle reporting.
This feature article discuses key takeaways following Anthem’s $115 million settlement – one of the largest following a consumer data breach. Mintz Member Dianne Bourque is among the sources discussing what the health care industry can learn.
This article takes a closer look at a hack of Obamacare enrollment records. The piece notes that the breach could lead to an in-depth investigation of the government agency responsible for the federal health-care exchange. It is further noted that this hack could serve as a wake-up call for the government. Member Dianne Bourque is among the industry sources quoted.
Mintz Member Dianne Bourque was quoted in a Bloomberg Law article regarding the possible exposure of patients’ personal data due to cyberattacks on computer chips. Health care organizations are urged to install the most current security patches for their computer networks.
Dianne Bourque, a Member in the firm’s Health Law Practice, was among the group of experts quoted in a Law360 article regarding how a Blue Cross Executive’s divulging of private information about a patient likely triggered an alert with HIPAA's privacy protections. 
Press Release Thumbnail
Mintz Members will be participating in multiple panel discussions at the 2017 Boston Conference on Cyber Security hosted by Boston College and the FBI. The event presents an opportunity for leading minds to come together and fashion a more secure cyberspace.
Attorneys from Mintz represented Myriad Genetics, Inc. in its acquisition of Assurex Health, an informatics-based precision medicine company providing treatment decision support to health care providers for mental health patients.
Dianne Bourque, a Member in the firm’s Health Law Practice, is quoted in this Law360 article on a Chicago nurse’s tweets of pictures of a shooting victim’s hospital room. The tweet brought about allegations of privacy violations and a lawsuit against the hospital claiming as much.
Firm’s National Healthcare Practice, NY Corporate/M&A and Litigation: General Commercial Among Newest Rankings
Dianne Bourque, a Member in the firm’s Health Law Practice, is quoted in this Part B News article discussing the new HIPAA federal privacy rule for gun control.
The 2015 Chambers USA: America's Leading Lawyers for Business guide names 52 Mintz, Cohn, Ferris, Glovsky and Popeo, P.C.  attorneys as “Leaders in Their Fields.”

Events

Sep
30
2020

Clinical Trial Risk Management during COVID-19

Advanced Medical Technology Association's Virtual MedTech Conference

Online Event

Webinar Reference Image
Apr
21
2020

Clinical Trials in the Time of COVID-19

View the Webinar Recording

Webinar Reference Image
Speaker
Mar
2
2020

Healthcare Law & Compliance Institute: Taming Technology

How to Maximize Innovation While Minimizing Risk

Amelia Island, Florida

Speaker
Nov
14
2019

Health and Hospital Law: MCLE BasicsPlus

MCLE Conference Center, 10 Winter Place, via Winter Street

Panelist
Jun
19
2019

Health Care & Cybersecurity: A Powerful Combination

ML Strategies, 701 Pennsylvania Ave, NW, Suite 900, Washington, DC 20004

Speaker
May
23
2019

MCLE New England's 20th Annual Hospital & Health Law Conference 2019

Conflict of Interest and Research Compliance

Ten Winter Place, Boston

Panelist
Mar
8
2017
Panelist
May
2
2016

New England Healthcare Executive Network Meeting

NE Healthcare Executive Network

Boston, MA

Faculty
Mar
1
2016

Anatomy of a HIPAA Breach Master Track

American Bar Association

Webinar

Panelist
Sep
27
2015

Employee Benefits & Healthcare Congress

Employer Healthcare & Benefits Congress (EHBC)

Orange County Convention Center, 9800 International Drive, Orlando, FL

Co-chair
Apr
29
2015
Speaker
Jul
23
2013