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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HIPAA Security Rule: Risk Analysis Review and Updating

HIPAA Security Rule: Risk Analysis Review and Updating | HIPAA Compliance for Medical Practices | Scoop.it

The HIPAA Security Rule requires that covered entities (health plans, healthcare clearinghouses, and healthcare providers who electronically transmit any health information in connection with a HIPAA related transaction), and business associates, implement security safeguards to protect the confidentiality, integrity, and availability of electronically protected health information (ePHI).

 

ePHI is any protected health information that is created, stored, transmitted, or received in any electronic format.

 

Performing a security risk analysis is the first step in identifying and implementing these safeguards.

 

A security risk analysis consists of conducting an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of ePHI.

 

Once the analysis has been completed, organizations should periodically conduct a risk analysis review.

What is the Scope of a Security Risk Analysis?

According to guidance issued by the Department of Health and Human Services (HHS), the scope of security risk analysis includes potential risks and vulnerabilities to the confidentiality, availability, and integrity of all ePHI that an organization:

  • Creates;
  • Receives;
  • Maintains; and
  • Transmits

Security risk analysis includes six elements:

  • Collecting Data
  • Identifying and Documenting Potential Threats and Vulnerabilities
  • Assessing Current Security Measures
  • Determining the Likelihood of Threat Occurrence
  • Determining the Potential Impact of Threat Occurrence
  • Determining the Level of Risk

What is a Security Rule Risk Analysis Review?

Once all of the above six elements have been addressed, all documentation should be finalized. In addition, the security risk assessment should be periodically reviewed, and updated, as needed

 

Continuous risk analysis review allows an organization to identify when updates to risk assessment policies and procedures are needed. 

 

The Security Rule does not specify how frequently to perform risk analysis review. According to risk analysis guidance provided by the Department of Health and Human Services (HHS), some covered entities may perform risk analysis review annually or as needed (e.g., twice a year, every 3 years), depending on the circumstances of their environment.

What Factors Influence Whether Risk Analysis Review Should be Performed? 

Factors to consider include:

  • Changes in technology and business operations. When an entity implements new technologies and plans new business operations, the entity should consider performing a security risk analysis assessment. Adopting new technologies and new business operations may pose potential risks and vulnerabilities to the confidentiality, integrity, and availability of ePHI; a risk analysis review can identify these risks and vulnerabilities.

 

  • An organization has experienced a recent security incident.  If a covered entity has recently experienced a security incident, such as a data breach, a risk analysis review should be conducted to determine whether and what additional security measures are needed.

 

  • An organization has experienced a change in ownership or turnover in key staff or management. An organization that undergoes a change in ownership or that experiences key staff turnover, should evaluate, in light of the expertise of the departed and incoming individuals, whether existing security measures are sufficient to protect against risks and vulnerabilities to the confidentiality, integrity, and availability of ePHI.  In addition, part of risk analysis consists of an assessment of current security measures. Important security measures include policies and procedures, contained in an employee handbook or similar document, that address data security and define staff obligations to protect ePHI. Before incoming workforce members begin their jobs, policies and procedures contained in the handbook should be evaluated for sufficiency and accuracy, so that when these policies and procedures are distributed, new employees have the most up-to-date information required for them to protect ePHI.

 

  • Regulatory and legislative changes. New legislation and regulations may impose additional or modified obligations under the Security Rule. If your risk assessment references a law or regulation, you should review that assessment to make sure it still complies with any changes made to the regulation. When new legislation is passed, or when new regulations become effective, the risk assessment should be reviewed and updated to incorporate the requirements of the new legislation or regulations.

 

Performing risk analysis review, and then making necessary updates to the risk analysis assessment, allows for your organization to reduce review identified risks to reasonable and appropriate levels.

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Top 10 Myths of HIPAA Risk Analysis

Top 10 Myths of HIPAA Risk Analysis | HIPAA Compliance for Medical Practices | Scoop.it

The following is a top 10 list distinguishing fact from fiction when it comes to conducting A HIPAA Security Risk Analysis.

  1. The security risk analysis is optional for small providers. False. All providers who are “covered entities” under HIPAA are required to perform a risk analysis. In addition, all providers who want to receive EHR incentive payments must conduct a risk analysis.
  2. Simply installing a certified EHR fulfills the security risk analysis Meaningful Use requirement. False. Even with a certified EHR, you must perform a full security risk analysis. Security requirements address all electronic protected health information you maintain, not just what is in your EHR.
  3. My EHR vendor took care of everything I need to do about privacy and security. False. Your EHR vendor may be able to provide information, assistance, and training on the privacy and security aspects of the EHR product. However, EHR vendors are not responsible for making their products compliant with HIPAA Privacy and Security Rules. It is solely your responsibility to have a complete risk analysis conducted.
  4. I have to outsource the security risk analysis. False. It is possible for small practices to do risk analysis themselves but can be time consuming. However, doing a thorough and professional risk analysis that will stand up to a compliance review will require expert knowledge that could be obtained through services of an experienced outside professional.
  5. A checklist will suffice for the risk analysis requirement. False. Checklists can be useful tools, especially when starting a risk analysis, but they fall short of performing a systematic security risk analysis or documenting that one has been performed.
  6. There is a specific risk analysis method that I must follow. False. A risk analysis can be performed in countless ways. OCR has issued Guidance on Risk Analysis Requirements of the Security Rule. This guidance assists organizations in identifying and implementing the most effective and appropriate safeguards to secure e-PHI.
  7. My security risk analysis only needs to look at my EHR. False. Review all electronic devices that store, capture, or modify electronic protected health information. Include your EHR hardware and software and devices that can access your EHR data (e.g., your tablet computer, your practice manager’s mobile phone). Remember that copiers also store data.
  8. I only need to do a risk analysis once. False. To comply with HIPAA, you must continue to review, correct or modify, and update security protections.
  9. Before I attest for an EHR incentive program, I must fully mitigate all risks. False. The EHR incentive program requires correcting any deficiencies (identified during the risk analysis) during the reporting period, as part of its risk management process.
  10. Each year, I’ll have to completely redo my security risk analysis. False. Perform the full security risk analysis as you adopt an EHR. Each year or when changes to your practice or electronic systems occur, review and update the prior analysis for changes in risks. Under the Meaningful Use Programs, reviews are required for each EHR reporting period.
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What Happens if a Nurse Violates HIPAA?

What Happens if a Nurse Violates HIPAA? | HIPAA Compliance for Medical Practices | Scoop.it

What happens if a nurse violates HIPAA Rules? How are HIPAA violations dealt with and what are the penalties for individuals that accidentally or deliberately violate HIPAA and access, disclose, or share protected health information (PHI) without authorization?  

 

The Health Insurance Portability and Accountability Act (HIPAA) Privacy, Security, and Breach Notification Rules must be followed by all covered entities and their business associates. The failure to comply with HIPAA Rules can result in significant penalties for HIPAA covered entities. Business associates of covered entities can also be fined directly for HIPAA violations, but what about individual healthcare workers such as nurses? What happens if a nurse violates HIPAA Rules?

What are the Penalties if a Nurse Violates HIPAA?

Accidental HIPAA violations by nurses happen, even when care is taken to follow HIPAA Rules. While all HIPAA violations can potentially result in disciplinary action, most employers would accept that accidental violations are bound to occur from time to time. In many cases, minor violations of HIPAA Rules may not have negative consequences and can be dealt with internally. Employers may decide to provide additional training in some cases to ensure the requirements of HIPAA are fully understood.

 

If a nurse violates HIPAA by accident, it is vital that the incident is reported to the person responsible for HIPAA compliance in your organization – the Privacy Officer, if your organization has appointed one – or your supervisor. The failure to report a minor violation could have major consequences. You can read more about accidental HIPAA violations here.

 

Serious violations of HIPAA Rules, even when committed without malicious intent, are likely to result in disciplinary action, including termination and punishment by the board of nursing. Termination for a HIPAA violation does not just mean loss of current employment and benefits. It can make it very hard for a nurse to find alternative employment. HIPAA-covered entities are unlikely to recruit a nurse that has previously been fired for violating HIPAA Rules.

 

Willful violations of HIPAA Rules, including theft of PHI for personal gain or use of PHI with intent to cause harm, can result in criminal penalties for HIPAA violations. HIPAA-covered entities are likely to report such incidents to law enforcement and investigations will be launched. Complaints about HIPAA violations submitted to the Office for Civil Rights can be referred to the Department of Justice to pursue criminal penalties, including fines and imprisonment. Criminal prosecutions are rare, although theft of PHI for financial gain is likely to result in up to 10 years in jail.

 

There is no private cause of action in HIPAA. If a nurse violates HIPAA, a patient cannot sue the nurse for a HIPAA violation. There may be a viable claim, in some cases, under state laws.

Further information on the penalties for HIPAA violations are detailed here.

Examples of HIPAA Violations by Nurses

The list of possible HIPAA violations by nurses is long, although the most common nurse HIPAA violations are listed below.

  • Accessing the PHI of patients you are not required to treat
  • Gossiping – Talking about specific patients and disclosing their health information to family, friends & colleagues
  • Disclosing PHI to anyone not authorized to receive the information
  • Taking PHI to a new employer
  • Theft of PHI for personal gain
  • Use of PHI to cause harm
  • Improper disposal of PHI – Discarding protected health information with regular trash
  • Leaving PHI in a location where it can be accessed by unauthorized individuals
  • Disclosing excessive PHI and violating the HIPAA minimum necessary standard
  • Using the credentials of another employee to access EMRs/Sharing login credentials
  • Sharing PHI on social media networks (See below)

Nurses Who Violate HIPAA with Social Media

Sharing protected health information on social media websites should be further explained. There have been several instances in recent years of nurses who violate HIPAA with social media.

 

Posting any protected health information on social media websites, even in closed Facebook groups, is a serious HIPAA violation. The same applies to sharing PHI including photographs and videos of patients via messaging apps such as WhatsApp, Skype, and Facebook Messenger. Unless prior authorization has been received from a patient, in writing, nurses should avoid sharing photographs and videos of patients (or any PHI) on social media sites. The National Council of State Boards of Nursing (NCSBN) has released a useful guide for nurses on the use of social media (on this link).

 

There have been several recent cases of nurses taking photographs and videos of patients in compromising positions, recording abuse of patients in nursing homes, and taking embarrassing or degrading photographs and sharing them with friends via social media networks.

 

There has been considerable publicity surrounding the practice, following the publication of a report on the extent to which this is occurring by ProPublica (Summarized here). In that case it involved the sharing of photographs of patients on Snapchat. 35 separate cases were uncovered.

 

In January, a nursing assistant was fired for sharing videos and photos of abuse of a patient with Alzheimer’s on Snapchat. A criminal complaint was filed and the nursing assistant faces up to three and a half years in jail if convicted.

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