PERS Promising but Also Problematic

The rising personal emergency response systems (PERS) market presents potential liabilities.

There are laws that require the safeguarding of personal and particularly medical information, specifically the HIPAA Security, Privacy and Breach Notification Rules (45 CFR Part 160 and Part 164) that apply to “covered entities,” which in all likelihood monitoring service providers would not qualify as. However, an alarm dealer or monitoring center may qualify as a “business associate” depending on what services are offered and what other parties are interacted with on behalf of the subscribers. If that is the case, a PERS/mPERS provider may be open to extreme exposure and huge fines for failing to comply.

Because PERS service lends itself to accumulation and dissemination of personal and medical information by a dealer, its central station and any data accumulator in the middle, all parties need to be certain that the information is safeguarded using the most up-to-date technology and that personnel are trained properly in the use of such information. And of course, safeguards should be in place to ensure that mistakes in communicating medical alerts are averted.

None of us want to think about a central station operator conveying the wrong medical information that leads to aggravated personal injury or death. Never mind sending responders to the wrong location or missing the signal. Is it any wonder traditional E&O carriers servicing the alarm industry shy away from medical alert coverage? You can get it, and you better get it if you’re providing the service. Furthermore, if a subscriber’s personal data is hacked, stolen or misused you may have a duty to notify the subscriber and/or the authorities promptly. Don’t freeze, do nothing, and hope for the best. You won’t like the result.

If you plan to offer PERS/mPERS, be sure to use the Standard Form Contract for PERS. If selling within your area you only need the single state version. However, if offering nationally you will need the “nationwide” version (call 516-747-6700, x312 for more info).

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Security Sales & Integration’s “Legal Briefing” columnist Ken Kirschenbaum has been a recognized counsel to the alarm industry for 35 years and is principal of Kirschenbaum & Kirschenbaum, P.C. His team of attorneys, which includes daughter Jennifer, specialize in transactional, defense litigation, regulatory compliance and collection matters.

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