HIPAA Compliance for Medical Practices
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HIPAA Compliance for Medical Practices
HIPAA Compliance and HIPAA Risk management Articles, Tips and Updates for Medical Practices and Physicians
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The HIPAA Password Requirements

The HIPAA Password Requirements | HIPAA Compliance for Medical Practices | Scoop.it

The HIPAA password requirements stipulate procedures must be put in place for creating, changing and safeguarding passwords unless an alternative, equally-effective security measure is implemented. We suggest the best way to comply with the HIPAA password requirements is with two factor authentication.

 

The HIPAA password requirements can be found in the Administrative Safeguards of the HIPAA Security Rule. Under the section relating to Security Awareness and Training, §164.308(a)(5) stipulates Covered Entities must implement “procedures for creating, changing and safeguarding passwords”.

Experts Disagree on Best HIPAA Compliance Password Policy

Although all security experts agree the need for a strong password (the longest possible, including numbers, special characters, and a mixture of upper and lower case letters), many disagree on the best HIPAA compliance password policy, the frequency at which passwords should be changed (if at all) and the best way of safeguarding them.

 

Whereas some experts claim the best HIPAA compliance password policy involves changing passwords every sixty or ninety days, other experts say the effort is a waste of time. A competent hacker should be able to crack any user-generated password within ten minutes using a combination of technical, sociological, or subversive methods (i.e. social engineering).

 

There is more agreement between experts when it comes to safeguarding passwords. In respect of a best practice for a HIPAA compliance password policy, a large majority recommend the use of password management tools. Although these tools can also be hacked, the software saves passwords in encrypted format, making them unusable by hackers.

The HIPAA Password Requirements are Addressable Requirements

One important point to mention when discussing the HIPAA password requirements is that they are “addressable” requirements. This does not mean they can be put off to another date. It means Covered Entities can “implement one or more alternative security measures to accomplish the same purpose.”

In the context of the Administrative Safeguards, the purpose of the HIPAA password requirements is to “limit unnecessary or inappropriate access to and disclosure of Protected Health Information”. Therefore, if an alternative security measure can be implemented that accomplishes the same purpose as creating, changing and safeguarding passwords, the Covered Entity is in compliance with HIPAA.

 

Two-factor authentication fulfills this requirement perfectly. Whether by SMS notification or push notification, a person using a username and password to log into a database containing PHI also has to insert a PIN code to confirm their identity. As a unique PIN code is issued with each log in attempt, a compromised password alone will not give a hacker access to the secure database.

Two Factor Authentication is Already Used by Many Medical Facilities

Interestingly, two factor authentication is already used by many medical facilities, but not to safeguard the confidentiality, integrity and security of PHI. Instead it is used by medical facilities accepting credit card payments to comply with the Payment Card Industry Data Security Standard (PCI DSS) and by others to comply with the DEA´s Electronic Prescription for Controlled Substances Rules.

 

Healthcare IT professionals will be quick to stress that two factor authentication can slow workflows, but recent advances in the software allow for LDAP integration and Single Sign-On between healthcare technologies. As two factor authentication software only transmits PIN codes (and not PHI) the software does not need to be HIPAA compliant, and it is a far easier solution for compliance with the HIPAA Password requirements than frequent changes of passwords and password management tools.

 

Effectively, Covered Entities never need change a password again.

The only thing Covered Entities have to remember before implementing two factor authentication to protect PHI is that, because the HIPAA Password requirements are addressable safeguards, the reasons for implementing the alternative solution have to be documented. This will satisfy the HIPAA requirements for conducting a risk analysis and also satisfy auditors if the Covered Entity is chosen to be investigated as part of HHS´ HIPAA Audit Program.

Why an Alternative to the HIPAA Password Requirements should be Considered

It was mentioned above that most user-generated passwords can be cracked within ten minutes. That may seem an outrageous claim to some IT professionals, but this tool on the ramdom-ize password generating website will give you an idea of how long it could take a determined hacker to crack any password by brute force alone. Social engineering and phishing will likely accelerate the speed at which the hacker succeeds.

 

Randomized passwords containing numbers, symbols and a mixture of upper and lower case letters obviously take a longer to crack – but they are still crackable. They are also much harder for users to remember; and although secure password management tools exist to store passwords securely, if a user wants to access a password-protected account from another device, password management tools are ineffective. The only way for the user to access the account is to have the password written down or saved on another device – such as an unsecured smartphone.

 

Accessing password-protected accounts from secondary devices increases the risk of a data breach due to keylogging malware. This type of malware runs undetected on computers and mobile devices, secretly recording every keystroke in a file for later retrieval by a hacker. As this is a foreseeable risk to the security of Protected Health Information, Covered Entities must either introduce policies to limit users to the devices from which they can access password-protected accounts, or find an alternative to the HIPAA password requirements.  

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HIPAA Regulations for Radiologists 101

HIPAA Regulations for Radiologists 101 | HIPAA Compliance for Medical Practices | Scoop.it

HIPAA regulations are a complex set of rules and regulations that are designed to promote a more patient oriented medical system that enhances patient care. HIPAA regulations that promote the accessibility of medical records to patients and increase the security of electronic patient health information are also included in the HIPAA Omnibus Rule. Radiologists often receive patients through a referral system or send patient files to another medical doctor or facility after x-rays and other scans are interpreted. This constant sharing of sensitive patient information makes learning what are HIPAA regulations and how do they affect radiologists an important task for any radiologist.

 

HIPAA Omnibus Rule

The HIPAA Omnibus Rule has changed the way that patient information is collected, stored, transmitted and created in response to the HITECH Act. The HITECH Act offers organizations incentives for using electronic patient health information while improving the security of that data. When asking what are HIPAA regulations one of the most important things to consider is your organization’s privacy policy. New HIPAA regulations state that organizations and entities must update their privacy policies and business agreements to comply with the current standards.

 

Current HIPAA standards require that all businesses sharing patient information must be HIPAA compliant. For instance, if a radiologist receives referrals or bills insurance companies on behalf of clients, the insurance company and the organization referring clients should both be HIPAA compliant. Current business associate agreements will be allowed until late September of 2014, but after that date all business associates will need to comply with the HIPAA Security Rule to avoid penalties or fines.

 

What is Affected by HIPAA?

Nearly every aspect of creating, sharing and transmitting electronic patient health information has been affected by new HIPAA regulations. In addition to revising and updating your organization’s privacy policies and business agreements, you will also need to look at your internal records storage and the accessibility of patient records. For instance, your internal computer systems must be secure and protected from data loss or third-party access. Data encryption is required anytime that you transmit electronic patient information. If your organization is using a third-party storage system for patient health information, the company providing web-based storage services will also need to be HIPAA compliant.

 

One of the areas that will be most affected for radiologists is how patient information is disclosed. Since radiology is a field where referrals are very common, care must be taken to ensure formal, written consent is provided each time you share patient health information. For example, a radiologist sending the results of an x-ray to a general practitioner will need to have written consent by the patient to do so. In order to understand and comply with current HIPAA regulations, it is best to use a HIPAA compliance checklist and HIPAA compliance software. HIPAA compliance software will walk you through the process of meeting current HIPAA regulations and help you avoid the confusion of updating and revising your current policies and practices on your own.
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Why Ignoring the Minimum Necessary Standard in HIPAA Could Cost You

Why Ignoring the Minimum Necessary Standard in HIPAA Could Cost You | HIPAA Compliance for Medical Practices | Scoop.it

Does your healthcare organization develop and implement policies and procedures that are appropriate and reflect your organization’s business practices?

Under the HIPAA Minimum Necessary Standard, all covered entities must have policies and procedures that identify who needs access to Protected Health Information (PHI) to perform their job duties, the categories of PHI required, and the conditions where access is justified.

 

For instance, as a hospital, you can allow doctors, surgeons, or others to access a patient’s medical records if they’re involved in the treatment of that patient. If the entire medical history is required, your organization’s policies and procedures must explicitly state so and include a justified reason.

 

As a provider, you also need to take reasonable steps to make sure that no PHI is accidentally available for access. For example, if you’ll be hosting a meeting in your office, then you must ensure that no one from the meeting can access PHI documents accidentally.

How Does The Minimum  Necessary Requirement Work?

As the name implies, under the HIPAA Minimum Necessary Standard, it’s mandatory for covered entities to take reasonable measures to limit the use or disclosure of PHI and requests for PHI, to the minimum necessary needed to achieve the intended goal.

However, it’s important to note that the minimum necessary standard does not apply to:

  • Requests for disclosure by a healthcare provider for treatment purposes  
  • Disclosing information to the patient in question   
  • Uses or disclosures after a patient’s authorization  
  • Uses or disclosures needed to comply with the Health Insurance Portability and Accountability Act (HIPAA) Administrative Simplification Rules  
  • Disclosing PHI to the Department of Health and Human Services (HHS) under the Privacy Rule for reasons of enforcement  
  • Disclosing PHI for use under other laws

The Minimum Necessary Standard of the HIPAA Privacy Rule requires that your covered entity develops and implements policies and procedures that are appropriate for your organization and that reflect your business’ practices and workforce. Only those who need access to PHI should receive access, and even then, the PHI should be restricted to the minimum necessary information needed to perform the job.

Why Does It Matter?

Did you know the healthcare industry is one of the most vulnerable sectors when it comes to cyber-attacks and data theft? If your organization fails to meet the minimum necessary standard, you could face fines of $50,000 or more.     

 

In fact, penalties for HIPAA violations can reach $1,500,000 annually per violation based on the type of breach.  

The largest American health data breach to ever occur took place in January 2015. It exposed the electronic PHI of nearly 79 million people and resulted in Anthem Insurance paying OCR $16 Million!  

The investigation found that Anthem did not perform

enterprise-wide risk analysis and the organization’s procedures did not regularly review information system activity. Anthem also failed to identify and respond to security incidents, and they did not implement proper minimum access controls to prevent the risk of cyber-attacks from stealing sensitive ePHI.

 

Complying with HIPAA’s minimum necessary standard matters if you want to avoid the risk of an expensive fine.

How Can You Comply?

Under HIPAA’s minimum necessary standard, the terms ‘reasonable’ and ‘necessary’ are open to interpretation and left up to the judgment of the covered entity. It’s up to your organization to determine what information should be disclosed and what information needs restricted access.

 

However, to make sure that you’re complying with this requirement, there are some basic steps you should follow:

  1. Prepare a list of all systems that contain PHI and what types of PHI they include.
  2. Establish role-based permissions that restrict access to certain kinds of PHI. All information systems should limit access to certain types of information. For instance, you can limit access to health insurance numbers, Social Security numbers, and medical histories if it’s not necessary for everyone to see that PHI.
  3. Design and implement a policy for sanctions if violations of the minimum necessary standard occur.
  4. Provide proper employee training about the types of information they’re permitted to access and what information is off limits. Be clear about the consequences of obtaining information when not authorized.
  5. Create alerts when possible that notify the compliance team if there’s an unauthorized attempt to access PHI.
  6. Ensure that the minimum necessary rule is being applied to all information shared externally, with third parties and subcontractors. It’s mandatory for covered entities to limit how much PHI is disclosed based on the job duties and the nature of the third party’s business.
  7. Perform annual reviews and periodic audits of permissions and review logs to determine if anyone has knowingly or unknowingly accessed restricted information. Such reviews may also be required when a major incident takes place, such as the treatment of a celebrity in your organization, or if a shooting or newsworthy accident takes place and your organization is involved.
  8. Document all actions taken to address cases of unauthorized access or accessing more information than is necessary and the sanctions that took place as a result.

Adhering to the HIPAA Minimum Necessary Standard is important to protect your organization and your patient relationships. When you take the appropriate steps to comply with HIPAA, you’ll not only have a much better chance of avoiding the risk of a costly data breach, but you’ll also build trust with your patients.

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Why should you care about HIPAA?

Why should you care about HIPAA? | HIPAA Compliance for Medical Practices | Scoop.it

Why should you care about HIPAA?

Can you afford a $50,000 fine for a HIPAA violation? The healthcare industry is extremely vulnerable to cyber-attacks and data theft. According to the HIPAA enforcement rule, penalties can reach up to $1,500,000 per year per violation depending upon the type of HIPAA violation.

Look at some of the biggest HIPAA penalties enforced by the Office for Civil Rights:

In October 2018, Anthem Insurance pays OCR $16 Million in Record HIPAA Settlement after a series of cyberattacks led to the largest U.S. health data breach in history and exposed the electronically protected health information of almost 79 million people. OCR’s investigation revealed that Anthem failed to conduct an enterprise-wide risk analysis, had insufficient procedures to regularly review information system activity, failed to identify and respond to suspected or known security incidents, and failed to implement adequate minimum access controls to prevent the cyber-attackers from accessing sensitive ePHI, beginning as early as February 18, 2014.

 

A judge ruled in June 2018 that MD Anderson Cancer Center has to pay $4,348,000 in civil money penalties to OCR following an investigation of the theft of 3 unencrypted devices that resulted in a breach of ePHI (electronic Protected Health Information) of over 33,500 individuals.

 

Fresenius Medical Care North America (FMCNA) is paying 3.5 million dollars with a corrective action plan after 5 separate data breaches in 2012 because they failed to implement policies and procedures and to implement proper protection of PHI (Protected Health Information).

 

CardioNet has been fined 2.5 million with a corrective action plan after a laptop was stolen from an employee's vehicle. Further investigation revealed insufficient risk analysis and risk management at the company. Their policies and procedures were in draft status and had not been implemented.

 

One surprise inspection can expose a HIPAA violation and change your business forever.  New legislation now allows patients in Connecticut to sue healthcare providers for privacy violations or PHI disclosure as well.  You may say that your job as a healthcare provider is only to treat your patients, that you don't need to worry about Cybersecurity or technology. 

 

Bear in mind though - it is a fact that Cybersecurity issues can impact and have impacted patient care on several occasions! Protect the integrity of your business and your patients' private health information to avoid a HIPAA violation that could cost you money, respect, and patients!

 

You may understand that HIPAA violations can lead to fines, but you may also be wondering: What is a corrective action plan? Often, when the Office of Civil Rights (OCR) imposes a fine for a HIPAA violation, they also enforce a Corrective Action Plan with a strict timeline to correct underlying compliance problems and a goal to prevent breaches from recurring.

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HIPAA Training is not HIPAA Compliance

HIPAA Training is not HIPAA Compliance | HIPAA Compliance for Medical Practices | Scoop.it

We hear from so many doctors’ and dentists’ offices that they are “HIPAA-compliant” because they have completed the required annual HIPAA training for their staff.   FALSE! HIPAA Training is not HIPAA Compliance. HIPAA Training is only one of the components of HIPAA Compliance – thinking otherwise could lead to a false sense of security.

 

HIPAA law consists of various requirements in the areas of security and privacy, use and disclosure of PHI (protected health information) and in breach notification rules.

Minimum steps needed for HIPAA Compliance:

At the very minimum, a doctor’s or dentist’s office must do the following for HIPAA Compliance:

  1. Exercise privacy in the office everywhere.   Be careful about accidental disclosure of patient information.
  2. Display the Notice of Privacy Practices prominently in your office lobby and on your website.
  3. Exercise caution in the use and disclosure of PHI (Protected Health Information).     Patients have the right to review and obtain their PHI.   The onus falls on the medical practice to secure and protect PHI from unauthorized disclosure of any kind.
  4. Conduct the mandatory annual risk assessment, or hire an expert to conduct it for you.   The assessor must take into consideration all the security and privacy-related criteria while conducting the assessment, including all your administrative, physical and technical safeguards.   A detailed list of recommendations and action items should follow as a result of the risk assessment.
  5. Prepare and follow security and privacy policies and procedures.   Your risk assessment should highlight the minimum required policies and procedures that you would need to prepare or obtain.   Physicians and staff members should be familiar with and should follow these policies and procedures on a daily basis.
  6. Provide annual HIPAA Training to your staff and physicians.

Breach notification:

Breaches have unfortunately become only too common these days in an environment where medical records are extremely valuable in the black market.   HIPAA law also specifies strict breach notification requirements in the event of a breach.   The Office of Civil Rights (OCR) of the Department of Health and Human Services (HHS) requires the practice to inform all individuals whose data might have been lost or stolen.  

 

A breach of more than 500 records is considered a reportable breach, that is, the practice must notify HHS.   This could result in an audit of the practice by federal agencies, and the first thing they are going to ask you for is a copy of your last annual risk assessment.

Small practices may be targets of breaches too:

Many small practices think that they are too small to be targeted.   False again!   If you look at the HHS "Wall of Shame" which lists reported breaches of more than 500 patient records, you will see several small practices listed there who have undergone breaches.   The reality is that smaller practices are likely to be even more affected by a breach considering the high expenses and workload that follow.    The Ponemon Institute has calculated the average healthcare data breach cost to be $380 per record - for 500 records, that comes to approximately $190,000, which can be highly damaging for a small healthcare practice.

 

We often hear from dentists that they do not believe they need to comply.   Also False!  In fact, just recently, on January 2018, Steven Yang, DDS of California and Zachary Adkins, DDS of New Mexico had breaches of 3000+ patient records each due to the theft of a laptop and other portable electronic devices respectively.   

 

Robert Smith, DMD of Tennessee reported 1500 records breached after a hack.  Several other providers such as physicians, hospitals, pharmacies, health plans, and business associates have experienced breaches in the recent past.   It can and will happen to anyone regardless of size - please do not think that it won't happen to you!

Culture of Security and Privacy:

HIPAA Training is not HIPAA Compliance.   Practices should take these requirements seriously as they are here to protect patients and medical professionals.   Protect yourself and your patients by incorporating a culture of security and privacy compliance in your medical practice.

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Six Common HIPAA Violations and how you can prevent them

Six Common HIPAA Violations and how you can prevent them | HIPAA Compliance for Medical Practices | Scoop.it

HIPAA compliance is an ongoing process.  Do you have security and privacy policies and procedures for your organization?  Do you review your policies and procedures periodically? Is your HIPAA training planned for new employees and to update everyone as necessary?  Do you know where the gaps are in your data security and do you have a plan to address these gaps?  Do your vendors and their staff follow a culture of privacy?

 

Our Managing director, Rema Deo has created a list of the top 6 HIPAA Violations 24By7Security staff have found, based on over 500 security risk assessments conducted by our security analysts for healthcare organizations ranging from one doctor practices to multi-location hospitals.  This list of HIPAA violations comes complete with appropriate risk mitigation recommendations that can help you in your organization. 

  

1. Lack of Business Associate Agreements (BAAs) with your vendors

Often healthcare organizations, especially the smaller to medium sized medical practices, fail to enter into Business Associate Agreements with their vendors or business associates. These vendors could range from a small IT vendor to large Electronic Health Record System (EHR).  Sometimes, smaller practices use free insecure email and even use insecure email to share or communicate PHI. This puts them at unnecessary risk.  Healthcare providers should also note that business associate agreements should be dated after the Omnibus Final Rule came into effect, i.e. after January 2013.   

How can you mitigate this risk when it comes to Business Associate Agreements?

  1. Prevent this risk by getting HIPAA-compliant Business Associate Agreements signed with all your vendors or business associates who have access to PHI.
  2. Be sure to always use secure means of transmission of PHI, and enter into a Business Associate Agreement with the vendors who are providing this secure transmission.  For example, secure email providers, external cloud storage solutions, EHR systems, and such providers usually have HIPAA-compliant service options where they provide business associate agreements.

 

2. Loss or theft of portable devices

Many covered entities take insufficient steps to safeguard PHI especially on thumb drives and other portable devices. The Office of Civil Rights (OCR) is clear that loss of PHI is not considered a breach if it is properly encrypted.

Mitigate your risk in case devices are lost or stolen

  1. Covered entities must ensure that their portable devices, thumb drives, laptops, computers and servers are all encrypted.
  2. Drives, storage devices and other portable devices storing PHI must be kept locked when not in use.
  3. Develop, implement and maintain an appropriate data backup policy.  Ensure that backups are encrypted as well.

 

3. Failure to complete an enterprise-wide Risk Analysis

OCR has also often found that failure to complete an enterprise-wide risk analysis is a HIPAA violation, and they have levied significant penalties and fines on entities who could not show evidence of having completed an enterprise-wide risk analysis.  The case of the large fine imposed on Anthem recently is an example of this.  We mentioned this breach and the monumental price tag that came with it in our October Newsletter.

Mitigate your risk of fines in the event of an audit

  1. All areas of the enterprise should be covered with periodic, thorough enterprise-wide security risk analysis.
  2. The risk assessment or analysis should be repeated periodically and after any major changes. We recommend doing this annually as a best practice.
  3. Review your findings from the Risk Analysis and prepare an action plan with remediation plans and target dates.

 

4. Insufficient physical safeguards or keeping PHI unlocked or easily accessible

Paper files are often kept unlocked. This practice carries a risk of penalties if your data is breached.

Mitigate your risk of unauthorized PHI access

  1. We recommend keeping paper files with PHI locked 
  2. IT closets/ network/ security/ server equipment should also be kept locked to prevent unauthorized access.

 

5. Lack of HIPAA security and privacy policies and procedures. 

Often covered entities do not maintain and implement satisfactory HIPAA security and privacy policies and procedures.  Or even if they have policies and procedures, not all of them review and update their policies and procedures periodically. 

Mitigate your risk

  1. Take the time to prepare and maintain policies and procedures.
  2. Review these policies and procedures annually or after a major change.
  3. Ensure that employees are trained on your policies and procedures, and follow them.

 

6. Delays in reporting breaches as per the breach notification rule.

Breaches affecting more than 500 patients are required to be reported to the Department of Health and Human Services (HHS) within 60 days of being discovered.  It’s bad enough to delay reporting to HHS, but covered entities may often not be aware of state-level breach notification requirements.  Some states like Florida can be very strict with breach notification delays. Florida, under the Florida Information Protection Act, has 30-day breach notification requirements and other specific rules depending on the number of records breached. The fines are also drastic, an example being $1000 per day for every day late for the first 30 days and more stringent penalties after that. All 50 states have enacted laws regarding breach notification.

Mitigate your risk of penalties for failing to report breaches in a timely manner

  1. If you suffer a breach, be sure to take legal advice in terms of all the requirements in your industry and location.
  2. Ensure that you are aware and comply with your state or location specific breach reporting requirements in addition to federal HIPAA breach notification rules.
  3. Cyber Insurance can help mitigate some of the expenses of a breach, but take a close look at what is covered and what you need to be doing in order to maintain coverage.

Don't risk making one of these costly mistakes!  Schedule your HIPAA risk assessment, HIPAA training for you and your staff, and prepare and/ or review your Policies and Procedures. 

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Is it Time for Your Organization to Hit the HIPAA Breach Panic Button? 

Is it Time for Your Organization to Hit the HIPAA Breach Panic Button?  | HIPAA Compliance for Medical Practices | Scoop.it

Indeed, it is. According to the latest statics from the HHS Office of Civil Rights (OCR), 43% of all reported breaches are now caused by hacking or other related information network discrepancies—not to mention those breaches that are the result of impermissible disclosures made by members of the work force.

 

Let’s face it, breaches will happen, especially those related to information systems. When it comes to breaches, most network security experts say it is “when” and not “if.” Regardless of whether the breach is related to the network or some other means such as lost or stolen devices containing ePHI, what is important is having a process in place to deal with it. This includes the ability to conduct an internal investigation to determine the basics such as how the breach was caused, the type of breach, and how many individuals were affected.

 

The HIPAA Breach Notification Rule states that a breach is, generally, an impermissible use or disclosure under the Privacy Rule that compromises the security or privacy of the protected health information. The exception is when the covered entity or business associate, as applicable, demonstrates that there is a low probability that the protected health information has been compromised based on a risk assessment of at least the following factors:

  1. The nature and extent of the protected health information involved, including the types of identifiers and the likelihood of re-identification;
  2. The unauthorized person who used the protected health information or to whom the disclosure was made;
  3. Whether the protected health information was actually acquired or viewed; and
  4. The extent to which the risk to the protected health information has been mitigated.

 

So, what is the best way to conduct the breach risk assessment to determine this probability? Start with some type of Breach Notification Risk Assessment Tool which is a decision tree-based process. This will help determine if the breach is reportable. Even if the determination is made that the breach is not reportable, documentation that this assessment was conducted must be maintained.

 

Having a comprehensive breach notification policy is critical. This will save a lot of headaches and layout a process to follow during the period of uncertainty associated with a breach. The policy should state the obvious such as who needs to be notified internally within the organization, who is responsible for conducting the assessment, and what specific notifications need to be made. What is even more important is the actual procedure to implement the policy. Procedures should cover how to undertake the investigation of the breach to cover the who, what, how, and when of the occurrence. If it is a reportable breach, this type of information is required for submitting “Notice of a Breach” to the Secretary of HHS (which technically is delegated to OCR.) When submitting the Notice, one should be prepared to answer a number of questions. This is why it is important that the internal investigation uncover as much information as possible.

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New HIPAA requirements target unsecured protected health information

New HIPAA requirements target unsecured protected health information | HIPAA Compliance for Medical Practices | Scoop.it

The American Recovery and Reinvestment Act of 2009, signed by President Barack Obama in February, modified the Health Insurance Portability and Accountability Act (HIPAA). In particular, the Health Information Technology for Economic and Clinical Health Act (HITECH) sets forth new requirements relating to business associates and notification of patients regarding breaches of unsecured protected health information. The new regulation covers breaches that occur after September 23, 2009.

 

Before HITECH, a covered entity, that is, a physician's office, hospital, clinic, etc.—only was required to mitigate the effects of an unauthorized disclosure, which may or may not have included notifying the patient Now, except for certain limited exceptions, a covered entity is required to notify a patient of an unauthorized disclosure of unsecured protected health information if a significant risk of "financial, reputational, or other" harm exists.

 

It is important to note that notification is only required for unsecured protected health information, not secured protected health information. The Department of Health and Human Services (HHS) issued guidance on what constitutes "secured" protected health information in April, stating that information is deemed secured if rendered "unusable, unreadable, or indecipherable" to unauthorized individuals.

 

To determine whether a "significant risk of harm" exists, the covered entity should consider what information was disclosed, to whom the information was disclosed, and what steps have been taken to eliminate or reduce the risk to the individual.

 

Any notification to the patient must include a brief description of what happened and the type of protected health information disclosed, any steps the patient should take to protect himself or herself, what the covered entity is doing to investigate and mitigate the breach, and information concerning who to contact for additional information. Any required notification must occur without unreasonable delay but no more than 60 days after the breach is discovered or should have been discovered with the exercise of reasonable diligence.

 

Notification must be in writing by mail (or by phone in urgent cases) or electronic means if the patient has consented to electronic notification. Also, specific rules exist regarding what to do if patients cannot be located. If a breach involves more than 500 patients—for instance, the loss of a laptop containing unsecured protected health information, then local media outlets must be notified. In addition, the HHS secretary must be notified—immediately for breaches involving more than 500 patients and annually for others.

 

With the new regulations, the knowledge of a covered entity's agents, including business associates, is imputed to the covered entity. Therefore, the clock for notifying patients could begin to run before the covered entity actually is aware of the disclosure. New agreements may be required, and education of business associates is important, to ensure that they are aware of these requirements and that they indemnify your practice if they fail to comply with the new rules and notify you promptly of any breach of protected health information.

 

The burden to disclose the breach or establish that no risk of harm to the patient exists is on the covered entity, even if the breach was the fault of one of its agents. A decision not to notify a patient because the covered entity does not believe that a significant risk of harm exists should be carefully investigated and documented.

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Texas Expands HIPAA Privacy Laws to Bolster EHR Security

Texas Expands HIPAA Privacy Laws to Bolster EHR Security | HIPAA Compliance for Medical Practices | Scoop.it

Governor of Texas, Rick Perry, has signed a new law to give Texas residents even greater protection than required by the Health Insurance Portability and Accountability Act and has increased penalties for healthcare organizations that fail to implement the appropriate security measures to protect the health data of patients.

 

Under the Health Information Technology for Economic and Clinical Health Act (HITECH), covered entities have a number of responsibilities including reporting data breaches to the Office for Civil Rights (OCR). Data breaches are reportable to the OCR, either in an end of year report or after an investigation, depending on the number of individuals affected.

 

HIPAA places a number of restrictions on how ePHI is used and stored, and all covered entities are required to conduct a full risk analysis to assess systems for security vulnerabilities to allow risk to be managed. It also lays down the procedures that must be followed after a data breach, such as notifying potential victims. Covered organizations are also required to conduct an investigation into how a breach occurred as well as a risk of harm analysis.

 

One of the main aims of HIPAA has been to improve the standard of data security and protect the privacy of patients. HIPAA and HITECH can be seen as minimum standards that must be followed, and states are allowed to increase data security rules, provided that all HIPAA requirements are met.

 

Texas has now exercised the right to tighten state privacy laws to ensure electronic Protected Health Information is kept private and confidential.

 

Greater Protection for Texas Residents
The new Texas law follows HITECH, although it makes a number of amendments to further restrict the use of ePHI. The penalties have been increased for wrongful disclosure, breach notifications have been updated and healthcare organizations must provide more training to staff. A new requirement is that data privacy and security training must now be provided to employees every two years. Training courses must be documented and all attendees must sign to confirm that they have received training. A 60-day time restriction has also now applies for providing new employees with training.

 

According to the new law, “an individual’s PHI may not be disclosed without the patient’s authorization, except for purposes of treatment, payment, healthcare operations, insurance purposes, and as otherwise authorized by state or federal law”

 

Harsher Penalties for Wrongful Disclosure of ePHI
Failure to comply with the new legislation will result in increased financial penalties and possibly criminal penalties – the theft of ePHI is now considered a felony – being applied for the wrongful disclosure of ePHI. The state is also able to revoke both professional and institutional licenses. Financial penalties have been increased to a maximum of $250,000 for intentional disclosure of ePHI for financial gain, $25,000 for intentional or knowing violation and $5,000 for each individual negligent violation, although the maximum penalty for repeat offenders is $1.5 million and enforced withdrawal from Medicaid, the Children’s Health Insurance Program and other state funded healthcare initiatives is also a possibility.

 

When assessing violations, the seriousness of the data breach will be considered along with significant risk of harm, past history of the organization, certification, the efforts made to mitigate any damage caused and the amount necessary to deter the organization from allowing further violations to occur. Failure to issue breach notifications to affected individuals will also be penalized at a rate of $100 per day, per individual, up to a maximum fine of $250,000.

 

HIPAA regulations require employers to provide training on data Privacy and Security Rules, although this is only required within a short time frame of the commencement of employment and after a material change in Privacy and security policies. Under the new Texas law there is a requirement for ongoing training to be provided to staff and this must also be tailored to the employee’s position within the company. Rules have also changed on breach notifications to include all HIPAA covered entities including business associates, as well as non HIPAA-covered entities that wrongfully disclose ePHI.

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Do HIPAA Rules Create Barriers That Prevent Information Sharing?

Do HIPAA Rules Create Barriers That Prevent Information Sharing? | HIPAA Compliance for Medical Practices | Scoop.it

The HHS has drafted a Request for Information (RFI) to discover how HIPAA Rules are hampering patient information sharing and are making it difficult for healthcare providers to coordinate patient care.

 

HHS wants comments from the public and healthcare industry stakeholders on any provisions of HIPAA Rules which are discouraging or limiting coordinated care and case management among hospitals, physicians, patients, and payors.

 

The RFI is part of a new initiative, named Regulatory Sprint to Coordinated Care, the aim of which is to remove barriers that are preventing healthcare organizations from sharing patient information while retaining protections to ensure patient and data privacy are protected.

 

The comments received through the RFI will guide the HHS on how HIPAA can be improved, and which policies should be pursued in rulemaking to help the healthcare industry transition to coordinated, value-based health care.

 

The RFI was passed to the Office of Management and Budget for review on November 13, 2018. It is currently unclear when the RFI will be issued.

 

Certain provisions of HIPAA Rules are perceived to be barriers to information sharing. The American Hospital Association has spoken out about some of these issues and has urged the HHS to take action.

 

While there are certainly elements of HIPAA Rules that would benefit from an update to improve the sharing of patient health information, in some cases, healthcare organizations are confused about the restrictions HIPAA places on information sharing and the circumstances under which PHI can be shared with other entities without the need to obtain prior authorization from patients.

 

The feedback HHS is seeking will be used to assess what aspects of HIPAA are causing problems, whether there is scope to remove certain restrictions to facilitate information sharing, and areas of misunderstanding that call for further guidance to be issued on HIPAA Rules.

 

HIPAA does permit healthcare providers to share patients’ PHI with other healthcare providers for the purposes of treatment or healthcare operations without authorization from patients. However, there is some confusion about what constitutes treatment/healthcare operations in some cases, how best to share PHI, and when it is permissible to share PHI with entities other than healthcare providers. Simplification of HIPAA Rules could help in this regard, as could the creation of a safe harbor for good faith disclosures of PHI for the purposes of case management and care co-ordination.

 

While the HHS is keen to create an environment where patients’ health information can be shared more freely, the HHS has made it clear is that there will not be any changes made to the HIPAA Security Rule. Healthcare providers, health plans, and business associates of HIPAA-covered entities will still be required to implement controls to ensure risks to the confidentiality, integrity, and availability of protected health information are managed and reduced to a reasonable and acceptable level.

 

In addition to a general request for information, the HHS will specifically be seeking information on:

 

The methods of accounting of all disclosures of a patient’s protected health information
Patients’ acknowledgment of receipt of a providers’ notice of privacy practices


Creation of a safe harbor for good faith disclosures of PHI for purposes of care coordination or case management
Disclosures of protected health information without a patient’s authorization for treatment, payment, and health care operations
The minimum necessary standard/requirement.


While the RFI is likely to be issued, there are no guarantees that any of the comments submitted will result in HIPAA rule changes.

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Few Things Physicians are Not Doing to Comply with HIPAA.

Few Things Physicians are Not Doing to Comply with HIPAA. | HIPAA Compliance for Medical Practices | Scoop.it

Shortly after the Health Insurance Portability and Accountability Act (HIPAA) was implemented, David Zetter was at a doctor's office helping the group build a compliance plan. He was in the back of the practice training some of the staff when the receptionist walked in and handed him a piece of paper.

 

The note was from a patient saying she could see everyone's names and files at the front desk and she knew that was a HIPAA violation.

 

More than a decade later, HIPAA compliance has become ingrained: Files are not left out in the open, patient information is not improperly disclosed, and doctors do not leave health-related messages on answering machines. It is routine to have every patient sign a HIPAA release and go about your business.

 

But compliance is not a one-and-done activity as much as an evolution of rules and procedures. Compliance gurus bet there are at least a few things physicians are not doing to comply with HIPAA.

 

Make a plan
One main thing that practices should have is a compliance plan, but many do not, said Zetter, founder of Zetter Healthcare Management Consultants. “They buy a cheap manual off of the internet and think that works,” he said. “But it cannot be implemented that way; it wasn't set up for your practice.”

 

Even state medical societies sell how-to manuals, but Zetter said this is only a document meant to guide you through creating a compliance plan, not the plan itself.

 

Sample HIPAA compliance plans and instructions for completing one can be found online. The Massachusetts Medical Society provides a document with a checklist and tips to help doctors develop their own documents.

 

Analyzing compliance
The second thing that needs to be completed is a gap analysis. These are used to determine what the organization is doing and what they should be doing. Zetter said an office needs to take each section of the regulation, see what is required and compare it with what is being done. Detailed information on creating a gap analysis can be found at the North Carolina Department of Health and Human Services Website.

 

Once gaps are identified, it is important to find ways to mitigate the potential problem areas. Physicians can do this by performing a risk analysis, which provides the basis for developing ways to cover themselves if an information breach should occur.

 

A risk analysis can arrive at whether there is a low, medium, or high risk of a HIPAA violation occurring, Zetter said. The greater the risk, the more resources are needed for prevention. All of this should be documented.

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Staff Nurse Faces Jail Time for HIPAA Violations

Staff Nurse Faces Jail Time for HIPAA Violations | HIPAA Compliance for Medical Practices | Scoop.it

Her breach of a patient's privacy jeopardized the clinic from which she was subsequently fired.

 

What began as routine file maintenance ended in arrest and possible jail time for a licensed practical nurse who shared a patient's medical information with her spouse.

 

Ms. A, 29, had been employed by a midsize regional clinic for five years. While she enjoyed her job and got on well with her supervisor, Dr. P, she was known to bemoan what she saw as low pay and the financial strain it created for herself and her husband. That strain intensified when her husband was in an auto accident and then sued by people in the other car seeking compensation for their injuries.

 

One day, as Ms. A was flipping through charts to straighten up the files, she saw the plaintiff's name. Reading the chart with great interest, she jotted some notes, stuck them in her bag, and replaced the file. That night, as her husband complained about the impending lawsuit and its potential financial consequences, Ms. A smiled and reached into her bag for the notes she'd taken earlier. “I think this will help,” she said.

 

The next day, Mr. A phoned the patient. During the conversation, he made it known that he had medical information which he believed weakened the man's case. Mr. A suggested that he consider dropping the lawsuit.

 

After hanging up with Mr. A, the patient made two phone calls. First he called the clinic where Ms. A worked. Then he called the district attorney.

 

The next morning, Ms. A was summarily fired. “You may very well have put this whole clinic in jeopardy,” Dr. P told her.

 

After Ms. A left the building, Dr. P called a meeting of all the nurses, physician assistants, and support staff and explained why Ms. A had been fired. Outlining the laws on patient privacy, he informed them that no breach of these laws would be tolerated under any circumstances.

 

Meanwhile, Ms. A's problems were just beginning. The district attorney forwarded the patient's complaint to a federal prosecutor, and within a month, both Ms. A and her husband were indicted. Ms. A was charged with violating the Health Insurance Portability and Accountability Act (HIPAA) and with “conspiracy to wrongfully disclose individual health information for personal gain with maliciously harmful intent in a personal dispute.” Her husband was charged with witness tampering. The couple hired a criminal defense attorney, who negotiated a plea agreement with the federal prosecutor. Ms. A pleaded guilty to one count of wrongful disclosure of individual health information for personal gain. In exchange for her plea, the charges against her husband were dismissed.

 

Ms. A is awaiting sentencing. She faces up to 10 years in prison, a fine of as much as $250,000, and up to three years of supervised probation. The state nursing board is seeking to revoke her license.

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Massachusetts Physician Guilty in HIPAA Case

Massachusetts Physician Guilty in HIPAA Case | HIPAA Compliance for Medical Practices | Scoop.it

Recently, a gynecologist was sentenced to 1 year of probation for violating HIPAA laws and obstructing an investigation into a federal health care probe.

 

Rita Luthra, MD, who treated women in a low-income area of Springfield, Massachusetts, was convicted this past April of allowing a pharmaceutical representative from Warner Chilcott improper access to patient records. While the case is unique—providers have rarely been charged criminally under HIPAA—it is a cautionary tale about the potential implications for improper disclosure.

 

Federal charges
Dr Luthra's conviction stemmed from a larger Department of Justice (DOJ) investigation into Warner Chilcott's practices. The pharmaceutical company, which was purchased in 2015 by Allergan plc, was investigated on allegations of paying kickbacks to physicians to entice them to prescribe its medications to patients; false marketing for Actonel, a drug prescribed for treatment of osteoporosis; and manipulating prior authorizations for its other osteoporosis drug, Atelvia.

 

The DOJ reached a $125 million settlement with the company in 2015. Dr Luthra was found to be one of the physicians accused of taking part in Warner Chilcott's practices. She was originally brought up on kickback charges, with investigators claiming she received more than $23,000 for prescribing their osteoporosis medication. They claimed she was paid approximately $750 on numerous occasions to hold educational events in her office for the pharmaceutical company.

 

But those charges were dropped, and a revised indictment for HIPAA charges was filed. Prosecutors claimed she gave a sales representative patient information in order to fill out forms to get an insurer to cover the drugs. She was also convicted on an obstruction charge for allegedly lying to the DOJ about why she was paid by the pharmaceutical company.

 

Luthra could have received up to 6 years in prison and a $300,000 fine for both charges. The judge on the case, however, said that the loss of her license and probation was enough of a sentence. He reportedly considered her work for years serving patients in lower-income communities during sentencing.

 

Pandora's box
Criminal prosecutions under HIPAA are not common, but Conor Duffy, a lawyer with Robinson & Cole LLP, said it is reflective of a growing trend.

 

“Prosecutors appear to utilize criminal charges under HIPAA in part as a fall back or as leverage against a provider, because proving HIPAA violations can be easier than proving the existence of an illegal kickback arrangement,” Duffy said. “The Massachusetts case is notable in that the government ended up dropping its kickback allegations but nonetheless prosecuted the physician for a HIPAA violation.”

 

There have been a few other cases where criminal charges were applied through HIPAA, most involving providers improperly using the information or providing it to others for financial gain. In one such case, a Florida nurse used the information of more than 600 of her patients to file false tax returns with potential refunds of more than $220,000. She was sentenced to more than 3 years in prison and fined.

 

“Some people are doing it for personal benefit, and it's happening more often than would be hoped for,” said Matthew Fisher, a law partner at Mirick, O'Connell, DeMallie & Lougee LLP.

When prosecutors file criminal charges, “they will come up with every single charge they can think of so one will stick,” Fisher said. Filing multiple charges allows them not only to find one that's valid, but also allows for negotiation. And when the government begins investigating, they will likely find some issues.

 

“Once they start looking around they will find something even if it's not why they came in the door,” Fisher continued “The regulations are so complex it's difficult to be 100% compliant and as a physician, you have to live with what comes out of that.”

 

Stay in compliance
This case provides a good warning, particularly for smaller organizations, that HIPAA applies to practices of all sizes, according to Amy Joseph, senior counsel at Hooper Lundy & Bookman PC. It is a reminder to avoid disclosing information unless it is for treatment, claim payment, internal health care operations, the patient has authorized the disclosure, or another limited exception applies.

 

“Disclosure for purposes other than treatment, payment, or health care operations need to be scrutinized,” Joseph said. “Get help, talk to your counsel. Just because someone else is in health care it doesn't mean they are going to protect the information or are asking for it for legitimate purposes. It's better to be more cautious than not.”

 

Duffy said personal relationships, such as those with some pharmaceutical sales representatives, should be monitored. These salespeople are “trained to cultivate business by building such relationships.”

 

“Providers also need to be careful to not rationalize potentially illegal acts—like allowing a sales representative to use identifiable health information to facilitate prescriptions of a drug for a patient—on the basis that a patient could ultimately benefit from a drug or device, because the laws governing these interactions do not take that into account,” he said.

 

If a provider gets into a situation where a pharmaceutical representative, medical device company, or other similar health care organization is calling and asking for patient information, Fisher recommends taking a step back before providing it. Providers should look at the relationship they have with the organization. They might be using it for valid purposes such as clinical trials or reporting to the FDA.

 

Most providers will shrug and say they would never get into the kind of situation Dr Luthra did, but Fisher said it is not always such an obvious delineation between when information should and should not be given out.

 

“If they are calling out of the blue and you're not clear why the connection is being made, question it and don't just volunteer that information,” Fisher said. “It's not a defense to say, ‘They told me it was OK and I never really thought about it.' You're always responsible for your own actions; no one is forcing you to do anything.”

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Protecting PHI: Managing HIPAA Risk with Outside Consultants 

Protecting PHI: Managing HIPAA Risk with Outside Consultants  | HIPAA Compliance for Medical Practices | Scoop.it

The rising complexity of healthcare, particularly as it relates to providers’ growing technical needs, is increasingly prompting healthcare organizations to seek the help of outside consultants. In engagements with healthcare entities, thought IT consultants try to minimize interaction with patient data, they often have access to protected health information (PHI). When working with HIPAA Covered Entities, consultants are treated as “business associates” and are required to comply with Privacy Rules designed to protect PHI.

 

Managing HIPAA compliance when engaging outside consultants requires that consultants enter into a Business Associate Agreement (BAA). The BAA must:

  • Describe the permitted and required uses of PHI by the business associate in the context of their role
  • Provide that the business associate will not use or further disclose the PHI, other than as permitted or required by the contract or by law
  • Require the business associate to use appropriate safeguards to prevent a use or disclosure of the PHI, other than as provided for by the contract

Here are several best practices to follow to ensure the protection of PHI in consulting arrangements.

 

FTE Mentality

During the contract period, the expectation is that consultants act as if they were an employee of the hospital or provider organization and therefore treat PHI in this manner. It is important to know that consultant business associates could be held liable or equally responsible for a PHI data breach in the same way a full-time employee could be.

 

Role-Based Access Rules

Limit access to PHI based on role to ensure that only the parties that need PHI have access to it. An IT strategist, for example, does not need to see live patient data. Associates leading implementation projects, on the other hand, may need access to live PHI. Typically, this occurs late in the implementation process, when the time comes to test a system with live, identifiable patient data.

 

Safeguard Access Points

If a hospital wants a consultant to have regular access to PHI, it would be preferable that the hospital provides the consultant with a computer or device with appropriate access authorizations and restrictions in place. Avoid the use of personal devices whenever possible. Make sure that only approved and authorized devices can be used inside the firewall and require multi-factor authentication during log-in. Avoid inappropriate access to PHI by way of shared or public data access points. Don’t allow private access to PHI where others could intervene.

 

Keep it Local

Don’t take PHI away from the source of use. Consultants should avoid storing PHI on personal devices, including smart phones, which are particularly susceptible to theft and loss. Devices used to store or access PHI must be registered. Best practices often include controls giving IT staff advance permission to remotely wipe or lock a stolen registered device. Avoid leaving registered devices in cars or unprotected areas.

 

Paper-based reports also pose threat of PHI leak. Documents you take home over the weekend, for example, could be accessed by family members, lost, or stolen. Electronic, paper, verbal and image-based PHI should all be confidently secured. Of course the regulations also relate to visual and verbal protections. When accessing PHI avoid allowing others to view your screen over your shoulder. When discussing PHI make sure only those who need to know and have appropriate authority can hear the conversation.

 

The healthcare industry is making great strides in establishing digital infrastructure, much of which is cloud-based, putting new onus on providers and their business partners to ensure the security of that information. No one wants to make headlines for the latest data breach, least of all the IT consultants hired by providers to help guide their data management efforts. Rigorous attention to HIPAA Privacy Rule guidelines is not only required – it’s imperative to maintaining trust in the healthcare ecosystem.

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HIPAA Police –Are They Coming For You?

HIPAA Police –Are They Coming For You? | HIPAA Compliance for Medical Practices | Scoop.it

As reported by Health and Human Services (HHS) HIPAA fines and audits are significantly on the rise. 5% of practices are being audited against the HITECH Act and Omnibus Rule. Are you compliant?

 

“How do all these regulations affect me as a Healthcare Covered Entity or Business Associate?”

To answer that question, let’s first look at what the regulations are and get a brief description. Once we read and understand what we are facing, the steps to complying with the rules should be attainable. I would love to say attaining compliance is easy, but with anything in life, if you want success you will have to work for it.

 

HITECH ACT

The Health Information Technology for Economic and Clinical Health Act (HITECH Act) was created to motivate the implementation of electronic health records (EHR) and supporting technology in the United States. President Obama signed HITECH into law on February 17, 2009, as part of the American Recovery and Reinvestment Act of 2009 (ARRA).

 

The HITECH act specified that by the beginning of 2011, healthcare providers would be given monetary incentives for being able to demonstrate Meaningful Use (MU) of electronic health records (EHR). These monetary incentives, up to $44,000 per doctor, will be offered until 2016, after which time penalties will be levied for failing to demonstrate such use.

 

FYI, the main failure that the centers for Medicare and Medicaid have discovered when auditing providers who have implemented an EHR system is their failure to perform a proper Risk Analysis.

 

OMNIBUS RULE

The United States Government’s requirement to implement Electronic Medical Records and Health IT compliance has prompted the US Government to adopt the long-awaited HIPAA Omnibus Rule http://compliancy-group.com/hipaa-omnibus-rule

The Omnibus Rule was finalized by the Office for Civil Rights (OCR). The Office of Management and Budget (OMB) approved the final rule and subsequently published it in the Federal Register.

 

The rule effectively merges four separate rulemakings, which are as follows:

  • Amendments to HIPAA Privacy and Security rules requirements;
  • HIPAA and HIPAA HITECH under one rule now
  • Further requirements for data breach notifications and penalty enforcements
  • Approving the regulations in regards to the HITECH Act’s breach notification rule

 

It is apparent for this new rule that the health care industry will need to educate patients with regards to their privacy and disclosure rights. Patients will need to know how their information is used and disclosed, and how to submit complaints pertaining to privacy violations. Health Care providers should also try to better understand HIPAA requirements so that they are aware of their risks and responsibilities towards their patients.

 

In addition, the Omnibus Rule includes provisions that would govern the use of patient information in marketing; eliminates and modifies the “harm threshold” provision that presently allows healthcare providers to refrain from reporting data breaches that are deemed not harmful; ensures that business associates and subcontractors are liable for their own breaches and requires Business Associates to comply with HIPAA for the first time since HIPAA was first introduced. The rule also requires HIPAA privacy and security requirements to be employed by business associates and sub-contractors.

 

So, what does compliance with these rules look like? Is it a 3-ring binder on a shelf with some policies, is it an online training course, or is it my IT person telling me I am protected? Actually, it is a little of all three.

  1. RISK ANALYSIS– A true risk analysis covering Administrative, (Policies and Procedures), Technical, (How are your Network, Computers, Routers, protected), Physical, What safeguards have you put into place at your location? (Alarms, Shredding, Screen Protectors).
  2. RISK MANAGEMENT- The risk analysis is going to identify deficiencies. Risk Management is then put in place to track how your remediation plan will work to fix the deficiencies that were found during the Risk Analysis.
  3. VENDOR MANAGEMENT– Vendor Management tracks the companies and people that access your site where PHI or ePHI is stored and keeps track of who you share PHI or ePHI with. Depending on the relationship, you will want to have either a Business Associate Agreement (if they meet the requirements for being labeled a Business Associate) or a Confidentiality Agreement. Remember, for Business Associates, an agreement alone is not enough; you also need assurances that they are complying with the HIPAA Security Rule before you share or continue to share PHI or ePHI with them.
  4. DOCUMENT MANAGEMENT– It is hard to imagine compliance without a place to store policies, procedures, business associate agreements, or any other compliance documents. Why you ask? Because the rule specifically states that you must retain all compliance documents for a min of 6 years (depending on the state your business is in these rules may be more stringent).

5. TRAINING OF YOUR STAFF– One of the most important aspects of compliance is the tracking of not only HIPAA 101 training for your staff but also of your staff’s acknowledgment that they understand the HIPAA Privacy and Security Policies that you

 
 
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The Benefits of Performing a HIPAA Risk Assessment

The Benefits of Performing a HIPAA Risk Assessment | HIPAA Compliance for Medical Practices | Scoop.it

The Health Insurance Portability and Accountability Act (HIPAA) Security Rule mandates that covered entities must conduct a risk assessment of their healthcare company.

 

 A wide range of organizations – from healthcare insurance providers to hospitals – fall into this covered entity group. While it may seem taxing and time-consuming to provide standardized training to your employees, there are many reasons doing so can behoove you. For one, it’s the law. Since 2009, Security Risk Assessments (SRAs) have been a required annual practice set forth by the HIPAA Security Rule.

 

Don’t wait to become a breach headline; nip breaches in bud by detecting security issues before they wreak havoc. You can’t be secure if you are not compliant; and a HIPAA Risk Assessment will safeguard your organization in more ways than one. Technology is a timesaver that has simplified the medical filing and billing processes, but it leaves the potential for leaks and hacking.

 

A risk analysis will identify and document potential threats and liabilities that can cause a breach of sensitive data. An IT security consulting company can check all portable media (laptops), desktops, and networks to ensure they’re ironclad. IT security measures, such as encryption and two-factor authentication2, will be addressed in order to make it challenging for unwanted eyes to get a glimpse of patient information.  

 

Employees are the greatest threat to HIPAA compliance, so it’s important to make sure they’re well informed on how to prevent breaches. Annual HIPAA Security Awareness Training Programs provide a thorough understanding of each person’s role in preventing breaches and protecting physical and electronic information.

 

HIPAA training is a regulatory requirement, many employee actions that go awry could easily be prevented. A consultant will offer tips and tricks for minimizing that risk; a few include never leaving work phones and laptops unattended, never sharing passwords or company credentials, choosing to shred files as opposed to trashing them, and overcoming the temptation to “snoop” on patient information without just cause.

 

While many of these suggestions seem like common sense, there are also many lesser known incidences that arise while working in the medical field. Did you know that you cannot access your own medical records using your login credentials? While it may seem innocent enough, everyone is required to submit a request to access medical materials. 

 

Don’t deter a Risk Assessment out of indolence. HIPAA Risk Assessments must be accurate and extremely thorough.  Questions about all the administrative, technical, and physical safeguards an organization has in place must be asked about.

 

If outsourcing your HIPAA Risk Assessment, choose a company that provides comprehensive training courses. No two companies are alike so cookie-cutter answers don’t exist for compliancy; a client-facing doctor’s office and corporate health insurance agency will require that different preventive measures be put into place.

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How HIPAA Helps Strengthen Patient Trust

How HIPAA Helps Strengthen Patient Trust | HIPAA Compliance for Medical Practices | Scoop.it

Trust is a vital factor that affects the success of any relationship, whether it be personal or professional. Without this foundational element, interpersonal and business relationships would be filled with suspicion and uncertainty leading to conflict and ultimately the disintegration of any bond that existed.

 

In today’s digitally-driven world, this core human value is now more critical than ever. Many of the transactions we perform daily force us to deal with entities we have never met in real life. Dealing with any organization that processes and stores our personal data requires us to trust that they will honor their commitments and keep our sensitive information secure.

 

When it comes to healthcare, patient trust is a core element of any practice. Any incident that jeopardizes patient trust can destroy the relationship and threaten the future of the organization.  As people are effectively placing their health and welfare under the direct care of a practitioner, trust is effectively the only human emotion at play in this relationship.

 

We not only trust them with our lives but with keeping our medical information private and secure. Should this data be compromised in any way, it would not only place the patient in a precarious position but would also destroy the trust relationship that existed with the practitioner.

HIPAA Strengthens Patient Trust

The Health Insurance Portability and Accountability Act (HIPAA) helps strengthen patient trust in various ways. It provides mechanisms that enhance the transparency, privacy, and security of electronic healthcare information. Not only does the Act help prevent sensitive patient data from compromise, but it also gives patients access and protects their private medical information.

 

Under HIPAA, medical organizations and practitioners that process and store patient healthcare information must implement measures that ensure compliance with the obligations stipulated under the statute.

 

Some of these measures include conducting regular security risk assessments and deploying technologies that protect access to patient information such as Multi-Factor Authentication (MFA) and encryption.

 

Complying with the provisions specified under HIPAA should not only be seen as a legal or regulatory obligation but as accreditation that the organization takes patient confidentiality and security seriously. It helps build that vital trust factor as patients know that the entity has implemented the necessary safeguards needed to protect the privacy of their sensitive medical information. Achieving HIPAA compliance should therefore not be seen as a regulatory obligation but as an essential business practice that builds patient trust.

The Healthcare Industry is Not Immune to Cybersecurity Risks

As the world has become more digital and many of the vital services that run our lives have moved online, cybersecurity is a fundamental principle that every organization needs to put into practice. No enterprise is immune from a cyberattack, and this fact is particularly true for organizations that operate in the healthcare industry.

 

According to the 2018 Verizon Protected Health Information Data Breach Report, 58% of incidents involved insiders. This statistic highlighted the fact that healthcare is the leading industry in which internal actors are the biggest threat to an organization. It’s interesting to note that the majority of these incidents involved human error.

 

Although malicious actions such as misuse of information, physical intrusion, and hacking also contributed to breaches involving the healthcare industry, human error was a leading cause of data compromise. These statistics show the vital role HIPAA can play in helping organizations reduce the risk of data breaches involving protected health information.

How to Comply with HIPAA Rules

HIPAA compliance is not a one time exercise but an ongoing assessment that involves a synchronized endeavor involving people, processes, and technology. As human error is the leading cause of data breaches in the healthcare industry, it is vitally important to implement the safeguards that HIPAA has created to reduce the risk of intentional or accidental compromise of patient healthcare information.

 

Under HIPAA, there are specific obligations that are required and others that are addressable. Required safeguards are mandatory for any organization that stores, processes, or transmits electronically protected healthcare information. Addressable provisions are not mandatory, but organizations need to either implement these or provide evidence that shows that these are not relevant to their specific circumstances.

 

The HIPAA Privacy Rule deals with protected health information (PHI) in general.  The HIPAA Security Rule provides compliance regulations for electronic PHI (ePHI). Under this section of the Act, there are various administrative, physical, and technical safeguards that offer the appropriate measures healthcare organizations need to implement to ensure patient privacy and the security of their ePHI.

 

Administrative safeguards include actions such as undertaking risk analysis and performing an information system activity review. It also recommends that organizations conduct regular cybersecurity awareness training and create an incident response plan.

 

Physical safeguards include measures such as deploying facility access controls and implementing the necessary steps to securely and safely dispose of media that contain ePHI.

Finally, the technical safeguards specified under HIPAA’s security rule include legislative obligations that healthcare organizations need to implement such as ensuring unique user identification, creating an emergency access procedure, and installing technologies that provide data integrity and transmission security.

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What you should know about HIPAA PRIVACY RULE

What you should know about HIPAA PRIVACY RULE | HIPAA Compliance for Medical Practices | Scoop.it

Does the HIPAA Privacy rule affect you?  

You should be familiar with the Health Insurance Portability and Accountability Act also known as HIPAA, but do you know how the privacy rule affects you? The U.S Department of Health and Human Services (HHS) has worked diligently since establishing HIPAA law to regulate privacy standards in the healthcare industry. When you think of the word privacy many things may come to mind, such as closing the door during a patient’s consultation or ensuring confidentiality while discussing patient treatments with fellow staff members. As a covered entity it is your responsibility to protect the privacy of your patients. 

 

6 ways in which you can implement a Culture of Privacy:

During your day to day operations, you need to be aware of how to implement the culture of privacy in your practice and comply with the law. Across all roles, every employee in your practice needs to be exercising compliance with HIPAA. Here are six ways in which you can implement a culture of privacy.

  • Provide HIPAA training to all your employees and maintain documentation that your entire staff has completed HIPAA training.
  • Ensure that your entire staff knows what patient information can be shared and not shared outside and inside of the workplace.
  • Get your patients to sign consent forms regarding sharing any form of PHI for any purpose including your own marketing purposes.
  • Stay updated on changes in the law on new disclosure restrictions and Update your patient authorization forms updated regularly on any such new disclosure restrictions.
  • Educate your patients and give them a clear outline of how they can request or obtain a copy of their medical records.
  • Ensure that you are giving your staff only the minimum necessary access to PHI to perform quality healthcare.

 

It is your responsibility to maintain professional top-quality healthcare for all parties involved while maintaining compliance with the law. Exercising the privacy culture is the way your practice stays current and minimizes the potential of a data breach. As a covered entity you need to be aware of the potential consequences that come with non- compliance. Consequences range from significant monetary fines to criminal penalties like jail time and a damaged reputation.  In addition, there are strict breach notification requirements outlined in the law.

 

In the event of a breach, you may be investigated by the appropriate federal agency like Office of Civil Rights (OCR) or the Department of Homeland Security or the Department of Justice, or other federal agencies who may be involved.  Depending on the results of the investigation, you may face penalties. Here are some penalties for data breaches that may apply. 

 

  • 100 dollars per record per day under HIPAA law with the maximum annual penalty being 1.5 million dollars per violation.
  • Loss of patient trust and repeat business due to damage to your reputation.

 

Millions of dollars in fines could potentially cause you to lose your livelihood and business. A bad reputation would stop repeat business and new customers from coming. These top penalties and consequences are avoidable and quality healthcare is attainable if you are complying with the law and practicing the culture of privacy every day. Remember to instill a culture of privacy in your office and follow the Five Steps to HIPAA Compliance every year.

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HIPAA compliance tips for small medical practices

HIPAA compliance tips for small medical practices | HIPAA Compliance for Medical Practices | Scoop.it

But data breaches don’t just affect large corporate entities, they affect small healthcare organizations as well. Take the case of Holland Eye Laser Surgery in March 2018. Their five-provider group practice saw a data breach which made available the patient records of 42,000 patients. Hackers were able to access Social Security numbers, birth records, and other sensitive protected health information (PHI).

 

In fact, some of the medical records of these patients were sold off by data hackers. Officials from the practice stated that they’re now working to strengthening their security system. But once patient trust is lost, sometimes it just cannot be restored.

 

Brief primer on HIPAA and data breaches

• The Privacy Rule protects individually identifiable health information held or transmitted by a covered entity or its business associate, in any form, whether electronic, paper, or verbal

• Each entity must analyze the risks to e-PHI in its environment and create solutions appropriate for its own situation.

• The HIPAA Breach Notification Rule requires providers to notify affected individuals, HHS, and in some cases, the media of a breach of unsecured PHI. Most notifications must be provided without delay and no later than 60 days following the discovery of a breach.

 

5 tips to help you and your medical staff to avoid data breaches

1. CMS requires organizations to “[i]mplement policies and procedures to prevent, detect, contain, and correct security violations.” (45 C.F.R. § 164.308(a)(1).) Conduct a detailed risk analysis to evaluate the current staff and product deficiencies and create corrective measures.

2. Designate a staff member to train employees on your practice’s HIPAA policies and procedures and spend time going over typical breaches.

3. Hire an outside expert to help your organization with compliance support. Your outside organization should set up monthly meetings with the business owners to evaluate your company compliance program and work with your organization to identify cost-effective resources to keep your company compliant.

4. Customize your internet toolbars with anti-phishing protection. These applications can run website checks and compare them to lists of known phishing sites and alert users.

5. Be suspicious of any email message that asks you to enter or verify personal information through a website or by replying to the message itself.  Practice groups and or staff members should never reply to or click the links in such a messages.

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HIPAA liability protections: business associate agreements are must for effective risk management

HIPAA liability protections: business associate agreements are must for effective risk management | HIPAA Compliance for Medical Practices | Scoop.it

The first step for a physician, known under the language of HIPAA as a “covered entity,” is to determine the need for a BAA with a vendor. A vendor is considered a “business associate” under HIPAA if the vendor creates, receives, maintains, or transmits patient health information (PHI) on the provider’s behalf.

 

Common services performed by a business associate (BA) include claims processing, data analysis, quality assurance, billing and collection, practice management, legal, accounting, and consulting.

 

Entities that only serve as conduits, such as the post office or Internet service providers, are not considered BAs even though they handle patient information.

 

What BAs must include

If a business associate is providing services to a covered entity, the parties must enter into a written BAA that:

 

  • establishes the permitted uses/disclosures of PHI,
  • stipulates that the BA must use appropriate safeguards to prevent unauthorized PHI uses and disclosures,
  • spells out that the BA reports to the covered entity any unauthorized uses and disclosures,
  • extends the terms of the BAA to its subcontracts, and
  • establishes that upon termination of the BAA, the vendor must either return or destroy all PHI.

 

The consequences of not having a written BAA can be severe. The Office of Civil Rights (OCR) could request a copy of a covered entity’s BAA if there is a complaint registered over a covered entity or if a breach occurs.

 

Violations under HIPAA can be penalized at anywhere between $100 to $50,000 per violation, up to a calendar year maximum penalty of $1,500,000 for a single violation. The OCR could take the position that every day that the BA and covered entity did not have a business associate agreement is a violation, and multiply the fine by the number of days no BAA penalty was in place, so the penalties can be steep.

 

Liability of agents

Under HIPAA, a covered entity is liable for the acts of its agents, which can include a BA.

 

Whether an agency relationship exists is determined case by case, with the essential factor being whether the provider has the right or authority to control the BA’s conduct. The authority of a provider to give instructions or directions is the control that can result in an agency relationship.

 

The language in the BAA will be considered in determining whether an agency relationship is present. If a covered entity is controlling the performance of its BA, the covered entity should closely monitor the BA’s performance since the covered entity will be held accountable for its performance.

 

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HIPAA Privacy Complaint Results in Federal Criminal Prosecution for First Time

HIPAA Privacy Complaint Results in Federal Criminal Prosecution for First Time | HIPAA Compliance for Medical Practices | Scoop.it

For the first time, a HIPAA privacy complaint filed with the Department of Health and Human Services’ Office for Civil Rights (OCR) has resulted in federal criminal prosecution.

 

A complaint was filed with OCR over an impermissible disclosure of a patient’s protected health information by a doctor. The doctor, Richard Alan Kaye of Suffolk, Va., was alleged to have shared PHI with the patient’s employer without consent from the patient – A violation of the HIPAA Privacy Rule.

 

The case against Kaye has been referred to the Department of Justice, which has pressed charges. While OCR has referred more than 500 HIPAA violation cases in the past, this if the first time that an investigation of a privacy complaint has resulted in criminal prosecution.

 

Kaye had previously worked at Sentara Obici Hospital in Suffolk, Va., as Medical Director of its Psychiatric Care Center. The patient had been enrolled in a mental health treatment program at the hospital and Kaye treated and subsequently discharged the patient. On discharge, Kaye stated that the patient was not a threat to the public.

 

Federal prosecutors allege Kaye shared PHI with the patient’s employer “under the false pretenses that the patient was a serious and imminent threat to the safety of the public, when in fact he knew that the patient was not such a threat.”

 

While it was previously possible for egregious HIPAA violations to result in criminal prosecutions for HIPAA covered entities, filing charges against individuals was problematic. When individuals were discovered to have violated the privacy of patients, and the violations warranted criminal prosecution, it was necessary to file charges under the aiding and abetting theory – The abuse of an individual’s position to violate HIPAA Rules.

 

However, the 2009 Health Information Technology for Economic and Clinical Health Act (HITECH Act) provided further clarification on criminal prosecutions for HIPAA violations, and made the process of prosecuting individuals for HIPAA privacy violations more straightforward.

 

If cases are investigated and OCR determines HIPAA Rules have been violated by covered entities, the cases are typically resolved by OCR, often via settlements. However, if individuals are alleged to have violated HIPAA Rules, criminal penalties may be appropriate. In such cases, OCR can refer the cases to the Department of Justice, the federal attorney general, and/or state attorneys general to pursue criminal charges against those individuals.

 

While criminal cases have been filed against individuals who violated HIPAA Rules and impermissibly disclosed PHI, the uncertainty of pursuing cases against individuals prior to the passing of the HITECH Act dissuaded federal prosecutors from pursuing cases. Since the HITECH Act was passed, there have been referrals of cases, although this is understood to be the first time that the Department of Justice has actively pursued criminal charges against an individual following the referral of a privacy complaint by OCR.

 

There is no private cause of action in HIPAA. While private citizens can file complaints with the OCR over alleged violations of HIPAA Rules, they are not permitted to file lawsuits against covered entities for HIPAA violations. The lack of criminal penalties for HIPAA violations may have dissuaded patients from filing complaints. Now the Department of Justice is taking action against an individual for an egregious HIPAA privacy violation, it may encourage more patients to file complaints with OCR.

 

This DOJ case shows federal authorities are now taking HIPAA Privacy Rule violations much more seriously. OCR is also training state attorneys general on HIPAA enforcement. After state attorney generals have received training, it is expected they too will take a more aggressive stance against covered entities that have violated the privacy of state residents.

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HIPAA Sees Meritus Medical Center Stop Media Announcements

HIPAA Sees Meritus Medical Center Stop Media Announcements | HIPAA Compliance for Medical Practices | Scoop.it

Meritus Medical Center is one of a number of hospitals that has stopped issuing information about patient conditions to the media. The hospital announced on September 22 that this courtesy would be stopped.

 

The Health Insurance Portability and Accountability Act places certain restrictions on the disclosure of Protected Health Information to third parties, including the media. Just a few years ago, reporters would be able to call a healthcare provider to make an enquiry about the health status of a patient.

 

The hospital staff would provide general information about a particular patient’s condition if they were asked about a patient by name. The information disclosed would be restricted, so reporters would be advised for instance, that a patient was good, fair, stable or in critical condition.

 

Under HIPAA Rules this information may be disclosed to the media; however it is not mandatory for a hospital or healthcare provider to give out any information, except when it is in the public health interest to do so or if required by law enforcement officers to assist with an investigation.

 

HIPAA Rules See Patient Privacy Improved
Since the HIPAA Privacy Rule is now being enforced, and covered entities can face considerable fines for violations of the Rules covering the disclosure of PHI, many hospitals have now taken the decision to stop releasing any information on patients. They see it as a measure that will improve privacy and help avoid any inadvertent HIPAA violations.

 

In the case of Meritus Medical Center it was not only the risk of HIPAA violations, but the policy was changed to improve privacy standards for patients. Meritus Communications Manager, Nicole Jovel, said in a media announcement “In conversations with clinicians and administrators, we determined we needed to really increase the level of privacy we were providing.”

 

A Patient’s Status can Rapidly Change
There are also problems with such a simple classification of status and providing information when it is likely to change. Patients may slip from serious to critical, or may improve from one day to the next. It would not be fair to report a condition, if that information may be incorrect just a few hours later. In the case of newspapers which are printed the following day, they may contain inaccurate information before they even hit consumers’ doorsteps.

 

Patient Safety is a Major Consideration
Then there is the issue of confirming the identity of the caller, which in often impossible. The hospital treats numerous victims of domestic violence, and Jovel pointed out that the staff cannot be sure if they are giving information to an abusing partner.

The problem faced by Meritus is typical. There are too many variables to consider, and in a busy healthcare setting it is too easy for mistakes to be made. Ultimately those mistakes could prove detrimental to patients and the decision is made to stop issuing all reports to the media.

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How to Comply with HIPAA

How to Comply with HIPAA | HIPAA Compliance for Medical Practices | Scoop.it

The Health Insurance Portability and Accountability Act (HIPAA) was created in 1996 to protect patients' health information. Since its inception, health care providers have struggled with the need to protect patient privacy, share information, and keep paper work under control.


“When HIPAA came out, everyone was so afraid of penalties … but a lot of it was a reasonable recognition of patients' privacy that was already occurring in 99.9% of the cases,” said L. Lee Hamm, MD, Professor of Medicine and Executive Vice Dean at Tulane University School of Medicine in New Orleans.

 

“It added a lot of administrative burden and … it introduced a few things to make certain that people didn't inadvertently do something they shouldn't do.”

 

Electronic information


A part of HIPAA with which specialists in particular are concerned is sharing information among other health care providers. Entities covered under HIPAA are allowed to share private information with other health care professionals for the purposes of treatment, payment, and operations.

 

But Heinold said there are often delays during this process that can negatively impact quality of care and increase liability. This can occur when providers unnecessarily request patients' consent.

 

One of the most efficient ways to communicate among providers is via electronic communication. HIPAA was amended in 2009 to encompass the use of electronic health records with the Health Information Technology for Economic and Clinical Health (HITECH) Act.

 

Fresenius staff is increasingly receiving communication about patients electronically through mediums such as text and instant messaging, Heinold said. While this can facilitate exchange of records, it also comes with inherent risks. Fresenius trains staff to provide the minimum necessary information when texting about patients.

 

Louis Liou, MD, Chief of Urology at Cambridge Health Alliance, said his organization's biggest HIPAA concerns relate to electronic information. To comply, Cambridge ensures that all physicians with smart phones have them password protected and that their e-mail is secure.

 

Cambridge physicians try to avoid texting patient information when possible, but if they must, they do not use any patient identifiers in the text messages.

 

“There are a lot of pitfalls that could potentially happen,” Dr. Liou said. “Thumb drives have given way to Cloud issues. I think potentially there can always be problems – no matter how failsafe you make the system, there is always human error.”

 

Dialysis settings


Another concern is the communal open-floor nature of some clinical settings, as is often the case in dialysis centers, which may make it difficult to protect patient privacy. Still, training staff and implementing privacy procedures can go a long way to meeting HIPAA requirements.

 

Rosemary Heinold, Director of Communications for Fresenius Medical Care North America, a dialysis services provider and manufacturer of peritoneal and hemodialysis machines and equipment, said their organization has a handful of practices that help them comply with HIPAA.

 

Although patients are examined on the dialysis floor, Fresenius clinics also offer private examination rooms. Patients are never required to be examined in an open setting and may request a private room for physician consultations.

 

Like most providers, Fresenius staff gives patients a notice of privacy rights, which individuals must sign. They also post a notice of their privacy practices at all treatment sites.

 

Fresenius providers also work by the “minimum necessary” rule. The staff only shares the least amount of information necessary with patients on the clinic floor, particularly when others are within earshot.

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No Exception to HIPAA Privacy Rules, Nurse Learns

No Exception to HIPAA Privacy Rules, Nurse Learns | HIPAA Compliance for Medical Practices | Scoop.it

Ms. P, 45, was a nurse working in the cardiology department of a large hospital. Her duties were varied, and included, among other things, accessing patient medical records to review lab values and other diagnostic tests ordered by physicians, and writing progress notes in patients' charts.

When she was originally hired by the hospital, she was given a lecture from human resources about the importance of patient confidentiality. Ms. P was required to sign an agreement stating that she would protect patient confidentiality by only seeking or obtaining information regarding a patient that was required to perform her duties.

Later, when the U.S. Health Insurance Portability and Accountability Act (HIPAA) went into effect, Ms. P was required to go to another human resources seminar and sign a revised confidentiality agreement.

 

The revised agreement stated that she would not access or view information other than what was required to do her job, and that she would immediately ask her supervisor for clarification if she had any questions about whether information was required for her job.

 

Finally, the agreement contained a section saying that Ms. P acknowledged that violation of the facility's confidentially policy could result in disciplinary action up to and including termination.

Ms. P understood the importance of patient confidentiality and would never look in the records of patients that weren't hers—with two exceptions. Ms. P's mother and sister both had serious chronic conditions that frequently resulted in hospital visits over the years.

 

Ms. P's mother had Parkinson's disease, was on numerous medications, and was prone to falls. Ms. P's older sister, who lived with her, had Down syndrome. Ms. P would periodically look up her mother's and sister's health records on the hospital computer to get information or to access their treatment plans. She didn't see anything wrong with this because it was her own family.

 

One of her colleagues, however, had noticed Ms. P looking at the records on more than one occasion, and anonymously reported her. The hospital's HIPAA compliance officer began an investigation that revealed that Ms. P had accessed her mother's charts on 44 separate occasions and her sister's charts on 28 occasions.

 

When the human resources director confronted her with the results of the investigation, Ms. P admitted that she had accessed the records, but that they were the records of her family members and therefore she didn't see anything wrong with it.

 

“Did you need to access information from their medical records in order to do your job as a clinical affiliate in the cardiology department?” the human resources director asked sternly.

“No,” Ms. P replied. “They were not cardiology patients.”

She was fired that day. Angered by the loss of her job, Ms. P sought the advice of an attorney to see if she could sue the hospital for wrongful termination. The attorney was skeptical.

“HIPAA violations are taken very seriously,” he said. “Did they give you training about patient privacy?”

 

Ms. P admitted that she'd had training.

“Were you asked to sign anything?” the attorney inquired.

“Well, yes,” Ms. P said. “I did sign a confidentiality agreement, and the hospital does have a policy that you could lose your job for violating it. But this was my mother and sister! They don't mind that I looked at their records!”

 

“That's irrelevant,” the attorney said. “It doesn't matter if they are family or not. You still didn't have the right to look at the records. I don't think we have a leg to stand on, unless…” the attorney trailed off, thinking.

 

“How old are you?” he suddenly asked.

When she told him, he smiled. “I think we may have an angle. We can try suing the hospital for age discrimination. We can claim that the privacy violation was merely a pretext to get rid of you – a higher paid experienced nurse – and replace you with a less expensive junior person.”

 

The attorney filed the papers against the hospital. The hospital's attorney promptly filed a motion to dismiss. The court, after reviewing all the facts, dismissed Ms. P's case.

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Strategies for Measuring HIPAA Compliance Efforts

Strategies for Measuring HIPAA Compliance Efforts | HIPAA Compliance for Medical Practices | Scoop.it

About 40% of large health care organizations do not take the time to measure how well their HIPAA compliance measures are working, according to Brian Wells, Chief Technology Officer of the cybersecurity firm Merlin International, headquartered in Vienna, Virginia. Most are unaware if they have thwarted cyberattacks, blocked malicious emails or kept staff from releasing inappropriate information.

 

“If they can't report that to the board, then they may stop giving them money to do more,” Wells said.

 

Measuring an organization's HIPAA strategy can be challenging. It is difficult to know if efforts to thwart cyberattacks have actually prevented breaches. “When ransomware like WannaCry comes out, it may be possible to say you protected yourselves,” he said. “If nothing bad has happened in a while, you can assume you are either doing a good job or just haven't been a target.”

 

How are providers supposed to measure HIPAA compliance effectiveness? Here are a few strategies for determining if an organization is on the right path using both internal and external resources.

 

A human touch
Wells works with hospitals now, but when he was on the medical practice side, his group performed annual testing on HIPAA regulations. The test was not hard, but everyone in the practice had to pass it. This not only lets a provider know where education is slipping through the cracks, but also provides a paper trail to point to should a practice get audited.

 

Adam Greene, a partner with Seattle-based Davis Wright Tremaine, also recommends informal testing to make sure people

 

understand their obligations under HIPAA. For example, the person in charge of HIPAA security can make a checklist to ask staff that includes questions like: “If someone wants to see something in their medical record, how would you respond?” Staff should know the patient has a right to records and the process involved in turning them over, be it filling out a form or directing the patient to the staff member who handles requests.

 

Another option is to assign an individual who would be accountable for walking around an office to ensure protected health information is secured properly. A few points to include would be ensuring computers are not facing toward patients; locked cabinets do not have the key hanging next to them; and people are logging out when they leave their computers.

“There could be a 10- to 20-question checklist and they can use it to see how they are doing and compare it over time,” said Marti Arvin, Vice President of Audit Strategy for CynergisTek, which is headquartered in Mission Viejo, California.

 

Arvin said an internal audit can be used to make sure staff members know where privacy policies are and that they are understood; whether all patients at their initial visit are provided with notices of privacy procedures; and if all of the staff members are receiving HIPAA training as they should.

 

Technology testing
Because health IT is constantly under attack, it would be difficult, expensive, and “voluminous” to show all of the attacks an organization has defended against, Greene said.

One option instead is to perform vulnerability scanning on a regular basis to examine if a system has unpatched software or other vulnerabilities. Another good practice is a phishing test. Here, an organization generates its own malware link and sends it to staff to see if anyone clicks.

 

Wells said an IT department can put in place a program that will check to see that people are only doing what they are supposed to be doing with their devices. It can also detect unmanaged devices that appear in the system. Electronic audit logs can be monitored to ensure people are not abusing their access.

 

Encryption is a must-have under HIPAA, and Greene said the best way to look at it is demonstrating that laptops are encrypted and will remain that way. For instance, someone with administrative rights can turn off encryption if they choose. But technical measures can be used to limit someone's ability to turn it off and to maintain compliance.

 

“Those things are really more to let you know how compliant you think you are,” Wells said. “For a full security audit, you are typically going to have to hire out.”

Keep it simple


Most physician practices are “dramatically under-resourced” in HIPAA staffing, Greene said. “The office administrator might be the privacy officer and maybe the security officer, too,” he said. “That is a lot of responsibilities, so providers need to give it some thought … and be careful about laying [extra responsibilities] on an office administrator who doesn't have enough time to do their regular job.”

 

Some of these auditing duties may need to be spread throughout an organization or hired out, but practices need to have an individual who is held accountable for auditing HIPAA policies. “There should be some oversight,” Arvin said. “Lots of practices give the title of security officer, but don't give resources or educate them on the responsibilities of overseeing the program.”

Greene also recommends making this a long-term endeavor. Instead of trying to look at all areas of compliance at once, he recommends starting with places where an office has had problems, where similar practices have had settlements, or where the Office for Civil Rights offers guidance.

 

For example, an individual responsible for HIPAA compliance might first spend some time ensuring staff members are providing patients with access to their records and if they are charging the right amount for them. Then he or she could move to other areas, such as disclosure of privacy practice guidelines.

“You can ultimately look at different regulatory requirements and create a master plan for how you are going to audit them,” he said. “Prioritize some immediately and others next year or the year after because they are seemingly lower risk.”

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