Following a recent U.S. government interagency report indicating that, on average, there has been an alarming 300 percent spike in daily ransomware attacks since early 2016 as compared with 2015, the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) released new Health Insurance Portability and Accountability Act (“HIPAA”) guidance on … Continue Reading
Businesses working with U.S. customer or employee data are very familiar with the roles the Federal Trade Commission (FTC), U.S. Department of Health and Human Services, and other federal agencies play in privacy regulation and enforcement. But, increasingly, if your company ends up facing a health – or other data – incident, you may find … Continue Reading
It has been a busy winter for the US Department of Health and Human Service, Office for Civil Rights (“OCR”). Since November 2015, the agency has announced three settlements and one civil money penalty judgment amounting to over $5 million in fines and settlements. Most recently, on February 3, 2016, a U.S. Department of Health … Continue Reading
On October 27, 2015, a U.S. Department of Health and Human Services (“HHS”) official stated that the agency has hired FCi Federal, a provider of management and professional services to government agencies in Ashburn, VA, to conduct the second round of Health Insurance Portability and Accountability Act (“HIPAA”) data security audits. Similar to the Phase … Continue Reading
In a recent Law360 article (login required), Partner Brad Rostolsky, addressed the establishment of an online portal to receive questions from developers of mobile medical apps about compliance with the Health Insurance Portability and Accountability Act. “Where health information is flowing pretty freely on mobile devices, it’s incredibly important for everyone involved to make the … Continue Reading
The HHS Office for Civil Rights recently announced a settlement and corrective action plan with Cornell Prescription Pharmacy (CPP), a small for-profit, single location, compounding pharmacy located in Denver, CO. CPP has agreed to pay $125,000 and enter into a corrective action plan to settle potential violations of the HIPAA Privacy Rule. This outcome is indicative of OCR's unwillingness to demonstrate wide variance in its enforcement response based on the size of an affected covered entity or the number of patients involved in a potential HIPAA violation.… Continue Reading
Last week, President Obama signed into law a bill that will eradicate Social Security Numbers (SSNs) from all Medicare beneficiary cards over the next eight years. Medicare has four years to begin issuing cards with new identifiers, and four years after that to reissue cards to current beneficiaries. The removal of SSNs from the cards is not only expected to decrease the risks associated with identity theft for Medicare beneficiaries, but also Medicare's risk of exposure associated with breaches of protected health and personal information under HIPAA and state privacy laws.… Continue Reading
The U.S. Department of Health and Human Services, Office for Civil Rights (OCR) recently announced a $150,000 settlement of potential violations of the HIPAA Security Rule by Anchorage Community Mental Health Services (ACMHS). These potential violations were caused by a malware breach of ACMHS's information technology resources. OCR's subsequent investigation of the breach found that ACMHS's preventative security measures prior to the breach were insufficient, and the settlement includes a Resolution Agreement with a corrective action plan for ACMHS to improve its security measures.… Continue Reading
In "HIPAA Enforcement: The Next Step," an interview and accompanying article that appeared on HealthcareInfoSecurity on October 14th, Reed Smith partner Brad Rostolsky details the HIPAA-related trends that he expects to see within the next several years. Among these predicted trends is an increase in the number of investigations by the Department of Health and Human Services' Office for Civil Rights regarding the illegal use and distribution of Protected Health Information without the permission of patients, a result of tightened regulations introduced in last year's HIPAA Omnibus Rule. Brad also discusses how companies should prepare for HIPAA compliance audits, the use of health information on social media, and potential privacy issues surrounding wearable consumer health devices.… Continue Reading
Two separate instances of unencrypted laptop theft from different health care providers have resulted in two settlements for potential violations of the HIPAA Privacy and Security Rules. These alleged violations were uncovered following investigations by the Department of Health and Human Services, Office for Civil Rights (OCR). In the first instance, involving Concentra Health Services, OCR found that Concentra had previously recognized its need for increased encryption on its technological devices but had failed to fully address this issue before the breach. In the second instance, involving QCA Health Plan, Inc. of Arkansas, OCR found that QCA had failed to comply with multiple requirements set forth by the HIPAA Security Rule. Both instances resulted in settlements comprised of financial payments to OCR as well as agreement to Corrective Action Plans that will allow for continued oversight by OCR in regards to HIPAA compliance.… Continue Reading
On March 7, 2014, the HHS Office for Civil Rights (“OCR”) announced its first settlement and corrective action plan with a county government. Skagit County in northwest Washington State has agreed to pay $215,000 to settle potential violations of the HIPAA Privacy, Security and Breach Notification Rules. According to Susan McAndrew, deputy director of health … Continue Reading
On February 6, 2014, the U.S. Department of Health & Human Services' (HHS) Centers for Medicare & Medicaid Services, Centers for Disease Control and Prevention, and Office for Civil Rights jointly published a final rule amending the HIPAA Privacy Rule and the Clinical Laboratory Improvement Amendments of 1988 regulations to provide patients with direct access to laboratory test reports. HHS believes that patients should have the right to access these test reports in order to gain vital information, allowing them to better manage their health and take action to prevent and control disease. The amendments to both regulations become effective April 7, 2014, and HIPAA-covered laboratories must comply by October 6, 2014.… Continue Reading
The Privacy and Security Tiger Team, a subcommittee of the Office of the National Coordinator for Health IT's HIT Policy Committee, has recommended that the Office for Civil Rights of U.S. Department of Health and Human Services abandon its May 2011 proposed rule to require covered entities to provide patients with a list of workforce members who have accessed protected health information contained in an electronic designated record set, concluding that the rule is overbroad and lacks value.… Continue Reading
After receiving more than 2,000 comments to its April 2013 Advance Notice of Proposed Rulemaking, the Department of Health & Human Services has proposed to amend the HIPAA Privacy Rule to expressly permit certain covered entities to report to the National Instant Criminal Background Check System ("NICS") the identities of individuals who are prohibited by federal law, for mental health reasons, from possessing firearms (commonly referred to as the "mental health prohibitor").
OCR has cited concerns that the existing HIPAA Privacy Rule may be preventing some state entities (which likely perform both HIPAA-covered and non-covered functions) from reporting to the NICS the identities of individuals subject to the mental health prohibitor. Therefore, HHS has proposed to add to the Privacy Rule new provisions at 45 CFR § 164.512(k)(7), which would permit certain covered entities to disclose the minimum necessary demographic and other information for NICS reporting purposes.… Continue Reading
According to a report published by the Office of the Inspector General (OIG) on November 21, 2013, the Department of Health & Human Services (HHS) Office for Civil Rights (OCR) is not adequately overseeing and enforcing the HIPAA Security Rule. The OIG's report concluded that OCR failed to provide for periodic audits to ensure that covered entities were in compliance with the Security Rule, and failed to consistently follow its investigation procedures and maintain documentation needed to support key decisions made during investigations conducted in response to reported violations of the Security Rule.… Continue Reading
The theft of an unencrypted flash drive has led to an agreement by Adult & Pediatric Dermatology, P.C., of Concord, Mass., to pay $150,000 to the Department of Health and Human Services' Office for Civil Rights to settle potential violations of the Health Insurance Portability and Accountability Act of 1996 Privacy, Security, and Breach Notification Rules. This case marks 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 Act, passed as part of the American Recovery and Reinvestment Act of 2009.… Continue Reading
Who knew that photocopiers stored information? Apparently "CBS Evening News" did, and now an April 2010 investigative report has led to a million-dollar HIPAA settlement.
Affinity Health Plan, Inc. (Affinity), a New York-based, not-for-profit health plan, agreed to pay the Office for Civil Rights (OCR) $1,215,780 to settle potential violations of the Health Information Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules. The settlement resulted from a breach self-report by Affinity, which first learned of the electronic protected health information (PHI) stored on its formerly leased photocopier's hard drive from "CBS Evening News" (CBS).… Continue Reading
On September 17, 2012, the HHS Office of Civil Rights ("OCR") announced another settlement and corrective action plan following an entity's breach self-report required by HITECH's Breach Notification Rule. Massachusetts Eye and Ear Infirmary and Massachusetts Eye and Ear Associates, Inc. (collectively "MEEI") have agreed to pay $1.5 million to settle potential violations of the HIPAA Security Rule following the theft of a physician's unencrypted, but protected, laptop, providing additional evidence that: (1) OCR will likely view any breach notification as an opportunity to conduct a de facto audit of an entity's general HIPAA compliance; and (2) encryption of all portable devices containing electronic protected health information ("ePHI"), though not technically "required," is a critical compliance consideration.… Continue Reading
On May 24, 2012, the Attorney General of Massachusetts announced that South Shore Hospital of South Weymouth, Massachusetts (South Shore) agreed to settle allegations that it failed to protect the personal and protected health information of more than 800,000 individuals. The settlement resulted from the hospital’s data breach report to the Attorney General in July … Continue Reading
On April 17, 2012, the HHS Office of Civil Rights (OCR) announced a settlement and corrective action plan with Phoenix Cardiac Surgery, P.C. (Phoenix), a small cardiology practice based in Phoenix and Prescott, Arizona. More specifically, Phoenix has agreed to pay $100,000 to settle allegations of HIPAA violations arising out of an investigation conducted by OCR.… Continue Reading
On March 13, 2012, the HHS Office of Civil Rights (OCR) announced the first enforcement action resulting from a breach self-report required by HITECH's Breach Notification Rule. Blue Cross Blue Shield of Tennessee (BCBST) has agreed to pay HHS $1,500,000 to settle potential violations of the HIPAA Privacy and Security Rules and has entered into a corrective action plan to address gaps in its HIPAA compliance program.
The HIPAA/HITECH Breach Notification Rule requires covered entities to report a breach (e.g., an impermissible use or disclosure of protected health information that compromises the security or privacy of the protected health information) to the affected individual(s), HHS and, at times, the media. OCR's investigation of BCBST followed a breach report submitted by BCBST informing HHS that 57 unencrypted computer hard drives were stolen from a leased facility in Tennessee. The hard drives contained the protected health information of more than 1 million individuals, including member names, social security numbers, diagnosis code, dates of birth, and health plan identification numbers.
According to OCR's investigation, BCBST failed to implement appropriate administrative and physical safeguards as required by the HIPAA Security Rule. More specifically, BCBST failed to perform the required security evaluation in response to operational changes and did not have adequate facility access controls.
In addition to the $1,500,000 settlement, the Resolution Agreement between BCBST and OCR requires BCBST to revise its Privacy and Security policies, conduct robust trainings for all employees, and perform monitor reviews to ensure compliance with the corrective action plan. BCBST did not admit any liability in the agreement and OCR did not concede that BCBST was not liable for civil monetary penalties.
Additional information about OCR's enforcement activities can be found at http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/index.html.… Continue Reading
Earlier today the Department of Health and Human Services’ (HHS), Office for Civil Rights (OCR) announced the imposition of the first ever civil money penalty for violations of the HIPAA Privacy Rule. The penalty – which is $4.3 million – was assessed against Cignet Health of Prince Georges County, a health insurer. The underlying HIPAA … Continue Reading