This week the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced an agreement to settle HIPAA violations with Filefax, located in Northbrook, Illinois. One aspect was different than their usual settlement process in that Filefax closed the business down during the OCR investigation and was no longer operating when the settlement was reached. OCR announced that Filefax could not avoid their obligations under HIPAA even though they were no longer running the company. The receiver that is liquidating the company’s assets agreed to pay $100,000 to settle the potential HIPAA violations made by the company while open.
Their HIPAA violations stemmed from an anonymous complaint stating that the medical records of approximately 2,150 patients, which contained protected health information (PHI), received by Filefax had been taken to a shredding/recycling facility and sold. The OCR investigation found over a period of several weeks the PHI had been left unsecured outside Filefox and had been removed from the facility by an unauthorized person.
The press release can be viewed here. The Resolution Agreement can be viewed here.
Also of Interest
HIPAA Enforcement Guide
HIPAA Enforcement 2017: Another Big Year for HIPAA Enforcement
Why Is HIPAA Data Breach Enforcement Increasing? An Insurer’s View from Katherine Keefe
Lessons from 2016, the Biggest HIPAA Enforcement Year on Record
Is HIPAA Enforcement Too Lax?
At the end of 2017, the OCR logged just under $20 million in fines for HIPAA violations from 10 enforcement actions with monetary penalties. In 2016, the total in penalties was roughly the same amount but from 15 organizations.
Here is an overview of the resolution agreements and enforcement actions with civil monetary penalties from 2017:
Lessons from 2017
Devices, devices, devices . . .
Quite a number of cases involved failure to implement safeguards for PHI on mobile devices. The best fix is to superglue devices to staff. Short of doing that, organizations should recognize that mobile devices frequently get lost or stolen, so there should be heightened security controls when PHI is accessible on these devices.
Several cases involved failing to provide timely notice or to act promptly after problems were discovered. In politics, it’s often not the scandal, but the coverup that fells politicians. In the world of HIPAA, it’s often not the incident, but the response that leads to organizations being penalized.
Recently, HIPAA enforcement over data breaches is increasing – a lot. This year has seen some of the largest monetary penalties. Why is this happening?
I had the chance to interview Katherine Keefe, who leads the Beazley Breach Response (BBR) Services Group. I am particularly interested in the insurer’s perspective, so I interviewed Katherine.
The first quarter of 2017 is not yet over and the OCR has already released details of four enforcement penalties totaling over $11 million. 2016 set a record with $20 million in fines for the year, with $5.2 million of that coming in the first quarter. In just the first 2 months of 2017, the fines have been more than half what the entire amount for 2016 was. Here are details about enforcement actions in 2017 thus far:
- Illinois health care network, Presence Health, was fined $475,000 for failing to notify patients of a breach within the 60-day period. The incident took place over 3 years ago. In October 2013, operating room schedules that were written on paper and contained PHI of 836 individuals went missing. Patients were not notified of the breach until February of 2014. This represents the first enforcement related to the timeliness of breach notification.
- An insurance company, MAPFRE, was fined $2.2 million for failure to safeguard portable devices and poor risk assessment and risk management. OCR found that MAPFRE did not have an adequate security awareness training program in place for their workforce. In 2011, an unsecured USB device containing the ePHI of 2,209 individuals was stolen from the company’s IT department. Despite the corrective measures MAPFRE indicated it would take, it did not actually start securing portable devices until 3 years after the incident.
- Children’s Medical Center of Dallas received a $3.2 million fine for multiple incidents where devices with unsecured ePHI were stolen. In 2010 an unencrypted Blackberry was stolen with the ePHI of 3,800 individuals. In 2013, an unencrypted laptop was stolen with ePHI of 2,463 individuals. The OCR investigation discovered that the hospital did not begin to secure and safeguard workstations and portable devices until 2013 despite being aware of the risks for many years.
- Florida corporation, Memorial Healthcare System, agreed to pay a fine of $5.5 million. This ties Advocate Health Care Network’s fine in August of 2016 for the record of highest penalty. In this incident, the PHI of 115,143 patients was improperly accessed and disclosed. Memorial Healthcare failed to terminate a former employee’s log-in credentials which was then used to access 80,000 records with PHI over the course of an entire year. The company also neglected to review the activity within the system that would have identified that the records were being improperly accessed. Memorial discovered the breach while investigating two employees who were stealing patient information to file fake tax returns.
Not too long ago, I posted an overview of OCR’s enforcement in 2016. OCR continues to be active in its enforcement, at its highest level to date. This is a great opportunity for privacy and security officials to point out to upper management the need for greater resources and attention to HIPAA compliance.
Time to call the Guinness Book of World Records because HHS has set a new world record in HIPAA enforcement. 2016 saw a considerable increase in HIPAA enforcement resolution agreements and monetary penalties. At the end of 2016, the OCR logged over $20 million in fines for HIPAA violations from 15 enforcement actions with monetary penalties — a stark contrast to 2015 penalties which were just over $6 million from just 6 resolution agreements.
The per entity fines have increased as well increasing from about $850K in recent years to $2 million in 2016.
Also, in late 2015, the Office of the Inspector General released findings of a study that recommended a stronger enforcement and follow-up from the OCR for HIPAA violations:
This cartoon is about snooping, one of the most common HIPAA violations. HIPAA prohibits accessing information that people don’t need to do their jobs. It can be easy to look at electronic medical records, and people who snoop in this way might not perceive it as wrong. But the cartoon invites people to imagine how creepy the snooping would appear if it were occurring right in front of patients. Computers remove the interpersonal dynamic, making it harder for people to fully appreciate the wrongfulness of their conduct.
Though the high-profile, celebrity snooping incidents garner all the media attention, smaller cases affecting everyday individuals make up the bulk of the cases and legal activity. A large number of inappropriate access claims involve people checking on protected health information (PHI) about family and friends. Snooping is not intended maliciously. Often a concerned staff member will access the patient records of a family member or acquaintance out of worry or concern. In one case, a nurse in New York was fired for disclosing a patient’s medical history to warn a family member who was romantically involved with the patient of the patient’s STD.
Here’s a cartoon on HIPAA and social media use to jump start your week. You can’t think enough about HIPAA these days. HIPAA audits are back, and OCR is having a vigorous enforcement year this year, something I plan to post about soon.
HIPAA is famously impenetrable, with so many special terms and definitions. I wrote this cartoon to capture the wonderful world of HIPAA jargon, which I hope fellow lovers of HIPAA can appreciate.
For those who want an introduction to HIPAA and how the Privacy Rule and the Security Rule work, I produced a series of courses on HIPAA for the American Health Information Management Association (AHIMA). Each course is approximately 1 hour long. The courses are:
• HIPAA Privacy: The Pillars of a Privacy Program
• HIPAA Privacy: Rights and Responsibilities
• HIPAA Security: Safeguarding PHI
They are available through AHIMA, but you can preview them on my site here.
These AHIMA HIPAA courses are not for the entire workforce — the courses are for personnel who focus on HIPAA compliance and need to understand the basics of how HIPAA works. My HIPAA training for the workforce is shorter as well as more basic and general.
I have another HIPAA cartoon here.
Recently, HIPAA celebrated its 20th birthday. HHS issued a celebratory blog post. HIPAA is 20 years old if you start counting from the date the statute was passed (1996). If we measure HIPAA’s age from the date that the HIPAA Privacy Rule became effective (2003), then HIPAA is 13.
So HIPAA could be 20 years old, eager to become 21 and be able to drink (right now, it just makes people want to drink) or 13 years old and about to begin being an unruly teenager.
A few years ago, I published an article in the Journal of AHIMA to celebrate HIPAA’s 10th birthday (counting from when the Privacy Rule became effective). The article discusses HIPAA’s growth and impact, and is a quick read if you’re interested. You can download it for free here:
HIPAA Turns 10: Analyzing the Past, Present, and Future Impact
84 Journal of AHIMA 22 (April 2013)
As ransomware escalates and poses serious security risks for healthcare institutions, many privacy experts and legislators have called for more specific guidance from the U.S. Department of Health and Human Services (HHS).
A few weeks ago, HHS responded to these calls with a detailed fact sheet to explain ransomware and provide advice. Although most of the document outlines what should be obvious for an organization that already has a solid data security plan (including reliable back-ups, workforce training, and contingency plans), the major headline is HHS’s verdict on whether or not a ransomware attack qualifies as a data breach under HIPAA.
Recently, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued its first resolution agreement and monetary penalty against a business associate (BA).
Ransomware has been sickening healthcare institutions. It has become a plague.
A new report by Verizon, the PHI Data Breach report, analyzes 1,931 data breaches of protected health information (PHI) under HIPAA, The incidents occurred between 1994 and 2014, with most occurring from 2004-2014. An article from Computer World sums up the findings of the report.
One interesting statistic is that 392 million PHI records were compromised in these breaches, more than the entire population of the United States.
The report notes that 3 types of incident account for 86% of the data breaches:
(1) Lost or stolen portable electronic devices
(2) Sending records to the wrong individual
(3) Improper access to PHI by employees
What do these things have in common?
These are problems that deal with the human factor. The problems are preventable, and the risk of them can be significantly reduced through training.
To train on these things, organizations must do more then merely say: “Be careful” or “Do not do.” The training must have an impact on people. And education is most effective with repetition. People must be repeatedly educated, over and over again.
By Daniel J. Solove
ProPublica has been running a series of lengthy articles about HHS Office for Civil Rights (OCR) enforcement that are worth reading.
A Sustained and Vigorous Critique of OCR HIPAA Enforcement
A ProPublica article from early in 2015 noted that HIPAA fines were quite rare. The article noted that from 2009 through 2014, more than 1,140 large data breaches were reported to OCR, affecting 41 million people. Another 120,000 HIPAA violations were reported affecting fewer than 500 people. “Yet, over that time span,” the article notes, “the Office for Civil Rights has fined health care organizations just 22 times. . . . By comparison, the California Department of Public Health . . . imposed 22 penalties last year alone.”
HIPAA expert Rebecca Herold offers a very compelling explanation of the value of HIPAA training. She writes:
Information security and privacy education is more important than ever because new gadgets and technologies enable more healthcare workers to collect and share data.
In September 2015, Cancer Care Group agreed to settle HIPAA violations by paying a $750,000 fine and adopting a “robust corrective action plan to correct deficiencies in its HIPAA compliance program.” One of the major requirements for Cancer Care Group was to review and revise its training program, because the breach was caused by an easily preventable employee action (leaving a laptop with clear text files of 55,000 patients in an unsecured car).
Training needs to be more than once a year, and as soon as, or prior to, the start of employment. There also need to be ongoing awareness communications and activities, as required by HIPAA.
Every organization of every size needs to invest some time and resources into regular training and ongoing awareness communications. Besides being a wise business decision, it’s also a requirement in most data protection laws and regulations to provide such education.
To this, all I can say is: Amen.
Rebecca is the author of several great resources on HIPAA, including The Practical Guide to HIPAA Privacy and Security Compliance.
by Daniel J. Solove
Recently, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) publicized its resolution agreement in its HIPAA enforcement action against St. Elizabeth’s Medical Center (SEMC). SEMC agreed to pay $218,000.
The case began with a complaint filed with OCR back in 2012 that employees were sharing PHI of nearly 500 patients via an online sharing application without a risk analysis on such activities being undertaken. OCR investigation found that the medical center “failed to timely identify and respond to the known security incident, mitigate the harmful effects of the security incident and document the security incident and its outcome.”
by Daniel J. Solove
I recently created a new resource page for the TeachPrivacy website: HIPAA Training Requirements: FAQ.
by Daniel J. Solove
There is a great quote in this article from HealthcareInfoSecurity: that expresses very well the importance and goals of HIPAA training programs:
Workforce training is important not only for preventing breaches, including those involving ID crimes, but also to help detect those incidents, [Ann Patterson of the Medical Identity Fraud Alliance] says. “Each employee must understand their role in protecting PHI. Equally important is regular and continued evaluation of the training programs to make sure that employees are adhering to the policies put in place, and that the ‘red flags’ detection systems are keeping pace with changing technologies and workplace practices.”
by Daniel J. Solove
I recently created a new resource page for the TeachPrivacy website: Text of HIPAA’s Training Requirements. This page provides excerpts of the training provisions in the HIPAA Privacy Rule and the HIPAA Security Rule.
This page is designed to be a useful companion page to our resource page, HIPAA Training Requirements: FAQ. The FAQ discuss my interpretation of the HIPAA training provisions, but the full text of those provisions is located on the separate new resource page above.
by Daniel J. Solove
A recent article in CIO explores the question: Is data security awareness training effective?
The answer: Yes.
The article points to an ISACA study that seeks to measure the effectiveness of data security awareness training. The study concludes: “Security awareness training is a vital nontechnical component to information security. As such, it is in the interest of the public and private sectors to continue to research this component that directly impacts security’s weakest link: humans.”