Last year was a record-setting year for HIPAA enforcement. On HHS’s website, OCR has touted its 2018 enforcement:
OCR has concluded an all-time record year in HIPAA enforcement activity. In 2018, OCR settled 10 cases and secured one judgment, together totaling $28.7 million. This total surpassed the previous record of $23.5 million from 2016 by 22 percent. In addition, OCR also achieved the single largest individual HIPAA settlement in history of $16 million with Anthem, Inc., representing a nearly three-fold increase over the previous record settlement of $5.5 million in 2016.
Massachusetts — $75,000 settlement with McLean Hospital for a data breach involving 1,500 victims based on an employee who routinely took home unencrypted backup tapes with PHI. From the state press release:
The AG’s complaint alleges that McLean, a psychiatric hospital in Belmont, allowed an employee to regularly take home eight unencrypted back-up tapes containing clinical and demographic information from the Harvard Brain Tissue Resource Center that the hospital possessed. The tapes contained personal information such as names, social security numbers, diagnoses and family histories. When the employee was terminated from her position at McLean in May 2015, she only returned four of the tapes, and the hospital was unable to recover the others.
New Jersey — $100,000 settlement with EmblemHealth for a 2016 breach involving 81,000 victims. Details from the state’s press release:
The incident at issue took place on October 3, 2016 when EmblemHealth’s vendor sent a paper copy of EmblemHealth’s Medicare Part D Prescription Drug Plan’s Evidence of Coverage to 81,122 of its customers, including 6,443 who live in New Jersey.
The label affixed to the mailing improperly included each customer’s HICN, which incorporates the nine digits of the customer’s Social Security number, as well as an alphabetic or alphanumeric beneficiary identification code. (The number shown was identified as the “Package ID#” on the mailing label and did not include any separation between the digits.)
During its investigation, the Division found that following the departure of the EmblemHealth employee who typically prepared the Evidence of Coverage mailings, the task was assigned to a team manager of EmblemHealth’s Medicare Products Group, who received minimal training specific to the task and worked unsupervised. Before forwarding the data file to the print vendor, this team manager failed to remove the patient HICNs from the electronic data file.
Pagosa Springs Medical Center (PSMC) has agreed to pay $111,400 to the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) for an alleged violation of HIPAA. OCR found that the company failed to deactivate a former employee’s access to a web-based calendar that contained the protected health information (PHI) of 557 patients. The company also failed to obtain a business associate agreement (BAA) with the calendar company (Google).
Advanced Care Hospitalists PL (ACH) has agreed to pay $500,000 to the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) for an alleged violation of HIPAA. OCR found that the company shared protected health information (PHI) with an unknown vendor without a business associate agreement (BAA). According to the Resolution Agreement, “ACH impermissibly disclosed the PHI of 9,255 of its patients to a third party for billing processing services without the protections of a business associate agreement in place.” The PHI later turned up on the vendor’s website.
This was clearly an unforced error in compliance — and an expensive one! So easy to avoid too! Providing PHI to a vendor without a business associate agreement is like going to work without your clothes on. Vendor management is incredibly important, and organizations that fail to have proper agreements with their vendors that receive personal data are often punished severely by many privacy laws beyond HIPAA. The GDPR requires vendor agreements, and the FTC has found that companies engage in an unfair practice under the FTC Act Section 5 when they lack an adequate vendor agreement.
The main lesson from most privacy enforcement cases, whether HIPAA or otherwise: Do the basics! So many cases involve failing to do obvious things. There’s not much muddy ground in the land of enforcement.
The press release can be viewed here. The Resolution Agreement can be viewed here.
A study released last month in Jama Open Network entitled Assessment of US Hospital Compliance With Regulations for Patients’ Requests for Medical Records demonstrates that compliance with HIPAA’s right to access medical records remains woeful. In the second half of 2017, researchers contacted 83 US hospitals and conducted a simulated patient experience to ask for medical records. Among the hospitals, the researchers found that “there was discordance between information provided on authorization forms and that obtained from the simulated patient telephone calls in terms of requestable information, formats of release, and costs.” On forms, “only 53% provided patients the option to acquire the entire medical record.” The study concluded that “Requesting medical records remains a complicated and burdensome process for patients despite policy efforts and regulation to make medical records more readily available to patients. Our results revealed inconsistencies in information provided by medical records authorization forms and by medical records departments in select US hospitals, as well as potentially unaffordable costs and processing times that were not compliant with federal regulations.”
HIPAA doesn’t handle patient access to medical records very well. There are many misunderstandings about patient access under HIPAA that make it quite difficult for patients to obtain their medical information quickly and conveniently. Getting records is currently like a scavenger hunt. Patients have to call and call again, wait seemingly forever to get records, and receive them via ancient means like mail and fax. I often scratch my head at why fax is still used today — it’s one step more advanced than carrier pigeon. Many covered entities do not send records by email, and getting electronic copies can be quite difficult. Many healthcare providers still maintain paper records in handwriting, and healthcare lags far behind most other industries in the extent to which it has moved to digital records.
Sadly, as this study confirms, little has changed.