Tag Archives: Health Insurance Portability and Accountability Act (HIPAA)

HIPAA Basics For Licensed Health Care Professionals: Privacy, Security, and Breach Notification Rules

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The Department of Health and Human Services (HHS) recently issued a Health Insurance Portability and Accountability Act (HIPAA) fact sheet for health care professionals and organizations. The overview is titled “HIPAA Basics for Providers: Privacy, Security and Breach Notification Rules” and is intended to provide HIPAA covered entities such as physicians, health care facilities and other licenced health care professionals with a basic overview of HIPAA’s rules and responsibilities. Click here to view the HIPAA fact sheet.

HIPAA Privacy Rule.

The privacy rule is established as a standard for the protection of protected health information (PHI) by covered entities. It gives patients vital rights with respect to their health information. The following is protected information under this rule:

1. The individual’s past, present or future physical or mental health or condition;

2. The provision of health care to the individual; or

3. The past, present or future payment for the provision of health care to the individual.

PHI also includes common identifiers, such as name, address, birth date and Social Security Number.

HIPAA Security Rule.

This rule specifies safeguards that covered entities are required to implement to protect the confidentiality, integrity and availability of health information. To properly enforce this rule, covered entities must develop policies and procedures to protect the security of electronic protected health information (ePHI). This includes analyzing risks and creating solutions that are appropriate for the situation. For more information from HHS on the implementation of the security standards, click here.

HIPAA Breach Notification Rule.

Affected individuals, HHS and in certain cases, the media are required to be notified of a breach of PHI. The rule includes the following guidelines:

1. Most notifications must be provided without unreasonable delay and no later than 60 days following the discovery of the breach.

2. Smaller breaches affecting fewer than 500 individuals may be submitted to HHS in a log or other documentation annually.

3. Business associates of covered entities are also required to notify the covered entity of breaches.

To view the breach notification timelines included in the HIPAA fact sheet, click here.

Who is Required to Comply With HIPAA Rules?

The following covered entities must follow HIPAA standards and requirements:

1. Covered Health Care Providers: Any provider of medical or other health care services or supplies who transmits any health information in electronic form in connection with a transaction for which HHS has adopted a standard. This includes doctors, chiropractors, dentists, pharmacies, psychologists, clinics and nursing homes.

2. Health Plans: Any individual or group plan that provides or pays the cost of health care. This includes company health plans, government programs for health care such as Medicaid and Medicare, along with the military and health insurance companies.

3. Health Care Clearinghouses: A public or private entity that processes another entity’s health care transactions from a standard format to a non-standard format or vice versa. This includes billing services, community health management information systems, repricing companies and value-added networks.

4. Business Associates: Provide services to covered entities and are extensions of the previous entities listed, including legal services, billing, financial services and accreditation.

Enforcement and Repercussions.

The HHS Office for Civil Rights enforces the HIPAA Privacy, Security and Breach Notification Rules. Violation of these rules may result in civil and in some cases criminal penalties. HIPAA violations can also lead to Medicare exclusion which is often a death sentence for a health care provider. To read a previous blog I wrote on the penalties of HIPAA violations, including a chart outlining the penalty structure, click here.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, or corrective action plans , please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620.

Sources:

Hamlet, Julie. “HHS ISSUES HIPAA “BASICS” FACT SHEET”. Foster Swift. (September 2, 2015). Web

Department of Health and Human Services. “HIPAA Basics for Providers: Privacy, Security and Breach Notification Rules”. (May, 2015). Web

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Health Insurance Portability and Accountability Act (HIPAA), HIPAA, HIPAA compliance, data security, protected health information (PHI), electronic protected health information, Patient privacy, U.S. Department of Health and Human Services (HHS), Office of Civil Rights (OCR), patient rights, HIPAA compliance audit, HIPAA violation, penalties for HIPAA violation, criminal penalties for HIPAA violation, civil penalties for HIPAA violation, HIPAA compliance, privacy, defense attorney, defense lawyer, Medicare exclusion, HIPAA defense attorney, HIPAA violation help, HIPAA attorney, HIPAA lawyer, compliance plans, health law firm, The Health Law

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law Firm. All rights reserved.

 

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Employers are Liable in Tort Actions for HIPAA Violations

2 Indest-2009-1By Shelby Root and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The Health Insurance Portability and Accountability Act (HIPAA) Omnibus Rule, implemented in 2013, modified HIPAA’s privacy and security rules. However, solutions aimed at health privacy challenges such as data and information collected by mobile apps generally lie outside the scope of HIPAA. To solve this problem, some states are working on a solution to the problem of patients not having a private right of action. One solution is to hold employers liable for privacy torts resulting from a breach of confidential medical information through the legal doctrine of respondeat superior.

Walgreen Co. v. Hinchy.

In the recent case, Walgreen Co. v. Hinchy, 21 N.E.3d 99 (Ind. Ct. App. 2014), Withers, the defendant’s employee-pharmacist, accessed a patient’s prescription profile for personal reasons. The patient, Hinchy, filed claims against Walgreen and Withers for breach of privacy. Hinchy filed claims against Walgreen claiming vicarious liability and direct negligence. A jury verdict of $1.8 million was awarded to Hinchy for breach of privacy in this case.

The Doctrine of Respondeat Superior.

Vicarious liability will be imposed upon an employer through the doctrine of respondeat superior when “the employee has inflicted harm while acting ‘within the scope of employment.'” For an act to fall within an employee’s scope of employment, “the injurious act must be incidental to the conduct authorized or it must, to an appreciable extent, further the employer’s business.” An employer is not held liable because it did something wrong, but rather “because of the employer’s relationship to the wrongdoer.”

Court’s Decision in Walgreen Co. v. Hinchy.

The court pointed out in Hinchy that Withers was authorized to use Walgreen’s computer system and printer, handle prescriptions for customers, look up the customers information on the computer system, review a patient’s prescription history, and make prescription-related printouts. When Withers committed the confidentiality violation she was at work, on the job, and using the company’s equipment. Withers owed the plaintiff a duty of privacy protection by virtue of her employment as a pharmacist. The court concluded that Withers caused harm to the plaintiff while acting within the scope of her employment.

Editor’s Comments.

This case is good law. An employer should be held liable when it places an employee in a position where the employee can injure another. Employers have a separate duty to closely supervise their employees, as well.

Healthcare employers must take precautions to prevent such breaches as occurred in the Hinchy case. Under traditional tort analysis, the employer is in the best position to prevent the injury. Under HIPAA, the employer has a number of additional duties including training its employees properly and securing information.

Comments?

What are your thoughts on respondeat superior? Please leave any thoughtful comments below.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Sources:

Terry, Nicolas. “Employer Liability for Privacy Torts.” Health Law Professor Blog. (Dec. 21, 2014). From:
http://lawprofessors.typepad.com/healthlawprof_blog/2014/12/employer-liability-for-privacy-torts.html

Walgreen Co. v. Hinchy, 21 N.E.3d 99 (Ind. Ct. App. 2014). From:

http://scholar.google.com/scholar_case?case=14802759292316058625&q=Walgreen+Co.+v.+Hinchy,+21+N.E.3d+99+(Ind.+Ct.+App.+2014).&hl=en&as_sdt=40006

About the Authors: Shelby Root is a summer associate at The Health Law Firm. She is a student at Barry University College of Law in Orlando.

George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Keywords: Health Insurance Portability and Accountability Act (HIPAA), Walgreen Co. v. Hinchy, HIPAA Omnibus Rule, HIPAA compliance, data security, protected health information (PHI), patient privacy, patient rights, HIPAA violation, privacy, defense attorney, defense lawyer, HIPAA defense attorney, HIPAA attorney, HIPAA lawyer, health law firm, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law firm. All rights reserved.

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HIPAA Fines, Mobile Devices and Risk Assessments: Follow the Steps or Pay the Price

Lance Leider headshotBy Lance O. Leider, J.D., The Health Law Firm

Two separate entities have agreed to pay the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) $1,975,220 in fines collectively. The settlements resolve potential violations of the Health Insurance Portability and Accountability Act (HIPAA) privacy and security rules involving stolen, unencrypted laptops. These two actions shine a light on the significant risk unencrypted laptops and other mobile devices pose to the security of patient information.

To read the press release from the HHS OCR, published on April 22, 2014, click here.

Concentra Received Risk Assessments, But Did Not Act on Findings.

According to the OCR, an investigation of Concentra Health Services, a subsidiary of Humana, was conducted after a laptop was stolen from a Missouri physician therapy center. This investigation revealed that Concentra had previously received multiple risk analyses that stated the company lacked encryption on its laptops, desktop computers, medical equipment, tablets and other devices containing electronic protected health information. Concentra’s efforts to remedy the risk were incomplete and inconsistent, leaving patients’ health information vulnerable. Concentra agreed to pay $1,725,220 to settle potential security violations and adopt a corrective action plan.

QCA Investigation.

The QCA Health Plan, Inc., investigation began in February 2012, after an unencrypted laptop containing the medical records of 148 individuals was stolen from an employee’s car. The investigation revealed that QCA failed to comply with multiple requirements of the HIPAA privacy and security rules. According to Modern Healthcare, the company is required to pay $250,000, as well as provide HHS with an updated risk analysis and corresponding risk-management plan.

Click here to read the entire article from Modern Healthcare.

Encrypt Laptops and Other Equipment or Pay the Price.

Encryption is one of your best defenses against incidents. These two settlements highlight the need for all entities to encrypt their laptops and other devices. Failing to do so may put that entity at risk for paying a large fine to the OCR and possible fines for state law violations.

HIPAA-covered entities are responsible for making sure all personal information is protected.

The following are some practical tips to use when handling protected health information. Share them with others in your organization:

1. Ensure that all types of electronic media by which you transfer patient health information of any kind are encrypted. This includes thumb drives, CD ROMs, DVDs, backup tapes, mini hard drives and anything else.
2. Try not to remove any patient information from your work site. If you need to work on it remotely, use a secure, encrypted internet connection to access your work database. Avoid saving the work or data onto your laptop hard drive or other removable media.
3. Never leave your laptop or other media in a car you are having worked on by a mechanic, having an oil change, having the car washed, or while you run into a store. Thieves stake out such locations and are waiting for careless individuals to do this.
4. Never leave your laptop, thumb drive or other electronic media from work in your car. What can be worse than having your car stolen? Having your car stolen with your laptop in it with patient information on it.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at http://www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Comments?

Are the laptops and other mobile devices at your practice encrypted? Does your practice regularly perform HIPAA risk assessments? Please leave any thoughtful comments below.

Sources:

Conn, Joseph. “Unencrypted-Laptop Thefts at Center of Recent HIPAA Settlements.” Modern Healthcare. (April 23, 2014). From: http://www.modernhealthcare.com/article/20140423/NEWS/304239945/unencrypted-laptop-thefts-at-center-of-recent-hipaa-settlements

U.S. Department of Health and Human Services Press Office. “Stolen Laptops Lead to Important HIPAA Settlements.” U.S. Department of Health and Human Services. (April 22, 2014). From: http://www.hhs.gov/news/press/2014pres/04/20140422b.html

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Data Breach at Colorado Hospital Highlights IT Security Risks

Lance Leider headshotBy Lance O. Leider, J.D., The Health Law Firm

A small rural hospital in Glenwood Springs, Colorado, has identified a virus on its computer network that had captured and stored screen shots of protected health information in a hidden file system. The hidden folder was created on Sept. 23, 2013, but was not discovered until Jan. 23, 2014. The breach identified at least 5,400 individual patients whose information was compromised.

According to Healthcare IT News, among the stolen data was patient names, addresses, dates of birth, telephone numbers, Social Security numbers, credit card information, and admission and discharge dates.

Hospital officials have been unable to determine how the virus was loaded onto the hospital network, according to Healthcare IT News. Consequently, officials believe that there is “very high” probability that the data had been accessed by an outside entity.

To read the entire article from Healthcare IT News, click here.

Take Steps to Secure Your Network.

Breaches of this kind are not solely confined to hospitals and large providers. In fact, it may be that this hospital was targeted because it was a smaller provider in a rural area with easier access to its systems.

Viruses like the one in question could be loaded onto systems as a result of an outside attack (think hackers) or through inside means like a flash drive or deliberately opening an infected e-mail.

It is imperative that a Health Insurance Portability and Accountability Act (HIPAA) covered entity have an effective cyber security plan. Make sure that you have up-to-date anti-virus software and that your computers are secure from access by unauthorized personnel like cleaning crews or patients and their families. Also, meet with your IT professional to discuss security measures you can put in place such as restricting access and accessibility to certain files or the ability to download programs and applications to essential staff only.

Hacked data represents a growing share of HIPAA breaches. It is imperative that covered entities ensure their compliance with HIPAA to avoid any sanctions by the Office for Civil Rights (OCR). To date, the OCR has collected in excess of $18 million in fines and penalties for failures to secure patient information.

Get a Risk Assessment.

A HIPAA Risk Assessment is a thorough review and analysis of areas where you may have risk of violating the HIPAA laws. Federal regulations require that covered entities have this assessment done. When the OCR auditor comes to visit your office to check for HIPAA compliance, they will ask for your Risk Assessment. Do you have one? Does your staff know who your HIPAA compliance officer is? To learn more on HIPAA risk assessments, click here.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs), please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Comments?

Do you think it is likely that this hospital was targeted because it was a smaller provider in a rural area? Do you think a HIPAA risk assessment could have helped this practice avoid a breach? Please leave any thoughtful comments below.

Sources:

Harvey, Nelson. “Hospital Database Hacked, Patient Info Vulnerable.” Aspen Daily News. (March 15, 2014). From: http://www.aspendailynews.com/section/home/161578

McCann, Erin. “Small-Town Hospital Gets Hacked.” Healthcare IT News. (March 17, 2014). From: http://www.healthcareitnews.com/news/small-town-hospital-gets-hacked

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Dermatology Practice Settles with Government After Stolen USB Drive Results in HIPAA Breach

10 Indest-2008-7By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR), and Adult & Pediatric Dermatology (APDerm), reached a $150,000 settlement for privacy and security violations of the Health Insurance Portability and Accountability Act (HIPAA). The alleged violations related to an unencrypted USB drive that was stolen. The thumb drive contained the protected health information (PHI) of around 2,200 patients, according to a press release posted December 26, 2013, on the HHS website.

According to the HHS, this is the first settlement with a covered entity for not having policies and procedures in place to address the breach notification provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act.

To read the entire press release from the HHS, click here.

APDerm delivers dermatology services to patients in Massachusetts and New Hampshire.

Alleged Violations Stemmed from Stolen, Unencrypted USB Drive.

According to the HHS, the OCR initiated its investigation after being tipped off that an unencrypted thumb drive containing the PHI of about 2,200 patients was stolen from a vehicle of an APDerm staff member. According to Healthcare IT News the thumb drive was never recovered.

The investigation allegedly revealed that APDerm had not conducted an accurate and thorough analysis of the potential risks and vulnerabilities to the confidentiality of PHI as part of it security management process. It’s also alleged that APDerm failed to fully comply with the HITECH Breach Notification Rule, which requires organizations to have written policies and procedures in place and to train staff members.

According to Healthcare IT News, the settlement also includes a corrective action plan (CAP). The CAP requires the dermatology company to develop a risk analysis and risk management plan to address and mitigate any security risks and vulnerabilities. Click here to read the entire article on Healthcare IT News.

Warning to HIPAA Covered Entities Regarding Risk Assessments.

This settlement is an important reminder about equipment designed to retain electronic information. HIPAA covered entities are responsible for making sure all personal information is protected. Entities are also required to undertake a careful risk analysis to understand the threats and vulnerabilities to individuals’ data, and have safeguards in place to protect this information.

HIPAA laws have most likely changed since you last edited your privacy forms and procedures. Many health providers simply do not have the time to re-review their policies and revise documents. In a perfect practice, this would be done every six months.

To learn more on HIPAA risk assessments, click here.

Be Sensitive to Technical Equipment Containing Internal Memory.

In today’s technological society everyone must be continually vigilant about the machines and equipment used. Many different types of devices now contain internal memory chips and hard drives that may store data that is difficult to erase. These may include photocopiers, scanners and fax machines, in addition to computers and servers. Security videos and communications monitoring systems may also maintain such information. Backup tapes and modern cell phones are other possible examples. These should be professionally cleaned of all data or destroyed before discarding them, selling them or trading them in on newer models.

To read a previous blog on Affinity Health Plan settling with government in photocopier HIPAA breach incident, click here.

Practical Tips.

The following are some lessons learned from this case. Share them with others in your organization:

1. Ensure that all types of electronic media by which you transfer patient health information of any kind are encrypted. This includes thumb drives, CD ROMs, DVDs, backup tapes, mini hard drives and anything else.
2. Try not to remove any patient information from your work cite. If you need to work on it remotely, use a secure, encrypted internet connection to access your work data base. Avoid saving the work or data onto your laptop hard drive or other removable media.
3. Never leave your laptop or other media in a car you are having worked on by a mechanic, having an oil change, having the car washed, or while you run into a store. Thieves stake out such locations and are waiting for careless individuals to do this.
4. Never leave your laptop, thumb drive or other electronic media from work in your car. What can be worse than having your car stolen? Having your car stolen with your laptop in it with patient information on it.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at http://www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Comments?

What do you think of this settlement? Does your office and/or practice have an annual security risk assessment? Do you think risk analyses are important? Please leave any thoughtful comments below.

Sources:

Millard, Mike. “Lost Thumb Drive Leads to $150K Fine.” Healthcare IT News. (December 30, 2013). From: http://www.healthcareitnews.com/news/lost-thumb-drive-leads-150k-fine

U.S. Department of Health and Human Services “Dermatology Practice Settles Potential HIPAA Violations.” HHS.gov. (December 26, 2013). From: http://www.hhs.gov/news/press/2013pres/12/20131226a.html

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Two Laptops Containing Information of 729,000 Patients Stolen from California Hospital Group

6 Indest-2008-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The personal health information of around 729,000 patients has been compromised following the theft of two laptops. The password-protected computers were taken from an administration building of AHMC Healthcare Inc., a hospital group in Alhambra, California. According to the Los Angeles Times, the laptops contain data from patients treated at six different AHMC Healthcare hospitals. Surveillance video shows that the theft occurred on October 12, 2013, but hospital officials did not discover the laptops were missing until two days later.

To read the article from the Los Angeles Times, click here.

Laptops Contain Patient Information, But No Evidence Information Has Been Hacked.

According to the hospital group, the laptops contain data including patients’ names, Medicare/insurance identification numbers, diagnosis/procedure codes, and insurance/patient payment records. Some of the files allegedly contain the Social Security numbers of Medicare patients.

So far, there is no evidence the information has been accessed or used, according to the CBS affiliate in Los Angeles. Click here to read the article from the CBS affiliate.

However, given that this just occurred a few days ago, it is probably too early to tell, anyway.

Breach Must Be Reported to the Department of Health and Human Services.

Hospitals are required, under federal law, to report potential medical data breaches involving more than 500 people to the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR). The OCR is responsible for investigating all allegation of violations of HIPAA Privacy and Security Regulations.

According to the Los Angeles Times, AHMC Healthcare has already asked for an auditing firm to perform a security risk assessment. Hospital administrators are also expediting a policy to encrypt all laptops.

HIPAA Omnibus Final Rule Effective September 23, 2013–Get a Risk Assessment.

The HIPAA Omnibus Final Rule went into effect on September 23, 2013. By now, hospitals, physicians and all covered entities must comply with the HIPAA Omnibus Final Rule. The amendments to the rule are available on the HHS OCR website. I previously wrote a blog series about the HIPAA Omnibus Final Rule. Click here for part one, click here for part two and here for part three.

Covered entities should be performing HIPAA risk assessments to identify their security risks and implement protections before a data breach occurs. HIPAA has always required covered entities to perform HIPAA risk assessments. Very often, the first question the OCR asks when investigating a possible HIPAA violation is what risk assessment the health care provider has performed.

The objectives of an adequate HIPAA risk analysis are:

1. Identify the scope of the analysis – the analysis should include all the risks and vulnerabilities to the confidentiality, availability and integrity of all electronic health information regardless of its location.
2. Gather data – the covered entity must identify every location where electronic data is stored.
3. Identify and document potential threats and vulnerabilities – the covered entity should consider natural threats, human threats and environmental threats.
4. Assess current security measures – the covered entity must examine and assess the effectiveness of its current measures.
5. Determine the likelihood of threat occurrence – the covered entity should evaluate each potential threat and prioritize its plan to address each threat.
6. Determine the potential impact of threat occurrence – the covered entity should assess the possible outcomes of each identified threat such as unauthorized disclosure of confidential information.
7. Determine the level of risk – the covered entity should categorize each risk and plan its procedures to mitigate any damage cause by each risk.
8. Identify security measures and finalize documentation – the covered entity should thoroughly document all the steps it used in its risk assessment process.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Comments?

What do you think if this alleged HIPAA violation? Do you have policies and procedures in place to protect your patients’ right to privacy? Have you received a HIPAA risk assessment lately? Please leave any thoughtful comments below.

Sources:

Winton, Richard. “Laptop Thefts Compromise 729,000 Hospital Patient Files.” Los Angeles Times. (October 21, 2013). From: http://www.latimes.com/local/la-me-hospital-theft-20131022,0,1936078.story#axzz2iRg6Rh3Y

Los Angeles CBS. “Laptops Containing Patient Information Stolen from Alhambra Hospital.” Los Angeles CBS. (October 22, 2013). From: http://losangeles.cbslocal.com/2013/10/22/laptops-containing-patient-information-stolen-from-alhambra-hospital/

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Affinity Health Plan Settles with Government in Photocopier HIPAA Breach Incident Involving Patient Medical Information

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The U.S. Department of Health and Humans Services (HHS) Office of Civil Rights (OCR), and Affinity Health Plan, Inc. (Affinity), reached a settlement for more than $1.2 million for potential violations of the Health Insurance Portability and Accountability Act (HIPAA). The alleged violations related to a photocopier previously leased by Affinity. The photocopier had an internal hard drive which stored copies of documents, including medical records, which had been photocopied by Afinity. The photocopier was returned to the leasing company and then later purchased from that same company by CBS Evening News. Apparently CBS Evening News then discovered the medical records on the photocopier hard drive.

According to the HHS, Affinity filed a breach report with the HHS OCR on April 15, 2010. This is required under the Health Information Technology for Economic and Clinical Health (HITECH) Act.

To read the entire press release from the HHS, click here.

Affinity is a not-for-profit managed care plan serving the New York metropolitan area.

Alleged Violations Stemmed from Failing to Clear Photocopier Hard Drive.

Affinity was allegedly informed by a representative of CBS Evening News, that as part of an investigation, CBS purchased a photocopier previously leased by Affinity. CBS allegedly informed Affinity that the photocopier still contained medical information on its hard drive. The OCR estimated that up to 344,579 individuals may have been affected by the breach. The OCR’s investigation found that Affinity impermissibly disclosed the protected health information of these individuals when it returned multiple photocopiers to leasing agents without deleting the data stored on the hard drives.

Affinity Must Try to Retrieve All Hard Drives in Previously Used Photocopiers.

According to HealthIT Security, on top of the $1,215,780 payment, Affinity must also try to recover all its previously used photocopiers that are still in the custody of the leasing company. Affinity must also conduct a risk analysis of its electronic protected health information for security risks and vulnerabilities.

Click here to read the article from HealthIT Security.

Warning to HIPAA Covered Entities Regarding Risk Assessments.

This settlement is an important reminder about equipment designed to retain electronic information. HIPAA covered entities are responsible for making sure all personal information is wiped from the hardware before it is recycled, thrown away or sent back to a leasing agent. Entities are also required to undertake a careful risk analysis to understand the threats and vulnerabilities to individuals’ data, and have safeguards in place to protect this information.

HIPAA laws have most likely changed since you last edited your privacy forms and procedures. Many health providers simply do not have the time to re-review their policies and revise documents. In a perfect practice, this would be done every six months.

To learn more on HIPAA risk assessments, click here.

Be Sensitive to Technical Equipment Containing Internal Memory.

In today’s technological society everyone must be continually vigilant about the machines and equipment used. Many different types of devices now contain internal memory chips and hard drives that may store data that is difficult to erase. These may include, for example, photocopiers, scanners and fax machines, in addition to computers and servers. Security videos and communications monitoring systems may also maintain such information. Backup tapes and modern cell phones are other possible examples. These should be professionally cleaned of all data or destroyed before discarding them.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Comments?

What do you think of this settlement? Does your office and/or practice have an annual security risk assessment? Do you think risk analyses are important? Please leave any thoughtful comments below.

Sources:

Office of Civil Rights. “HHS Settles with Health Plan in Photocopier Breach Case.” U.S. Department of Health and Human Services. (August 14, 2013). From: http://www.hhs.gov/news/press/2013pres/08/20130814a.html

Ouellette, Patrick. “OCR, Affinity Health Plan Reach HIPAA Violation Agreement.” HealthIT Security. (August 14, 2013). From: http://healthitsecurity.com/2013/08/14/ocr-affinity-health-plan-reach-hipaa-violation-agreement

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
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