HIPAA Blog

[ Thursday, December 18, 2014 ]

 

Illinois Hospital Blackmailed: at least it wasn't about a dumb movie.

Jeff [1:33 PM]

[ Wednesday, December 10, 2014 ]

 

Walgreens: Here's a good piece on the implications for employers.

Jeff [7:35 AM]

[ Tuesday, December 09, 2014 ]

 

Some Folks are Catching Up at Lexology: (i) on the Connecticut decision allowing a state cause of action to proceed using HIPAA as a guide (but acknowledging the lack of a private cause of action under HIPAA itself); and (ii) on the Indiana case holding Walgreens liable for an employed pharmacist's apparent improper access to PHI.  Of course, you read about them here first. . . .

Jeff [1:30 PM]

[ Monday, December 08, 2014 ]

 

$150,000 fine for Alaska Mental Health Agency's Failure to Protect ePHI: Malware on the computer system compromised data of 2,743 patients, but the bigger issue is the failure of the organization to keep its information systems up to date.  The malware apparently took advantage of security issues in the software for which patches had been issued, but the agency didn't keep track of patch management.  Basically, it's proof that adopting decent policies isn't nearly enough if you don't regularly make sure you've got reasonable risks covered.  The bulletin also pushes the HIT Security Rule Risk Assessment Tool: hint, hint, if you haven't reviewed this and compared your current security to what's in here, you're likely gonna get fined if there's a breach. 

Jeff [7:28 PM]

[ Friday, December 05, 2014 ]

 

80% of patients worry about health data security. 

Jeff [11:20 AM]

[ Wednesday, December 03, 2014 ]

 

Employee Snooping at Cleveland's University Hospitals.  It's being blamed on lax oversight; policies were good enough, but access auditing and other gatekeeper activities might have exposed the problem much earlier.  Trust but verify, a wise man once said. . . .

Jeff [2:41 PM]

 

How to Protect Patient Data: a cursory look.

Jeff [12:00 PM]

[ Tuesday, November 25, 2014 ]

 

Beth Israel Deaconness, BYOD angle: As previously noted here, someone stole a laptop from a physician at Beth Israel Deaconness hospital in Boston.  The laptop didn't belong to the hospital, but the hospital knew the doctor was using it for patient data, and (of course) it wasn't  encrypted.  The hospital has settled the state-law breach issues (and the state AG HIPAA enforcement issue) with the Massachusetts state officials, for a $100,000 fine.  I asssume there will be no OCR fine in this case, since HIPAA was specifically included in settlement with the state AG. 

Jeff [10:46 AM]

[ Wednesday, November 19, 2014 ]

 

Shasta Update: Prime Healthcare Services' Shasta Regional Medical Center in California was fined by the State of California and OCR in a case involving an advocacy group trying to make the hospital look bad.  A patient disclosed her own medical information related to her stay at Shasta Regional Medical Center; when the press asked the hospital executives about the matter, they disclosed the patient's information in defending the hospital, which served as the basis for the state and federal fines.  Apparently the patient also sued, but lost; the court determined that the patient had implicitly waived her privacy rights by making the initial disclosure to the hospital, and that therefore there was no improper disclosure of private information or any harm suffered by the patient. 

Hat tip: Theresa Defino

Jeff [2:16 PM]

 

Detroit: Hospital employees steal patient identities, file false tax returns.  HIPAA breach, but really just plain old identity theft.

Jeff [7:33 AM]

[ Tuesday, November 18, 2014 ]

 

Brigham & Women's Hospital Laptop and Phone Theft: approximately 1000 patients affected.  Can't really tell if the devices were encrypted, but don't know if that would matter if the robbers made the victim give up the codes.  As the commenter notes, I wonder why it took 2 months to report this -- hopefully that was at the request of the police.

Jeff [1:19 PM]

[ Monday, November 17, 2014 ]

 

Walgreens' $1.4 Million Verdict: an Indiana court has upheld a $1.4 Million judgment against Walgreens.  A Walgreens employed pharmacist accessed prescription records of her boyfriend's ex-girlfriend, and apparently disclosed the details to the boyfriend.  Presumably, the employee violated all sorts of rules, procedures, policies, and training, and I would assume Walgreens argued that she was acting outside the scope of her employment when she accessed the records.  But the court has held Walgreens liable, and the appellate court affirmed it, based on negligent supervision and retention, and invasion of privacy.

Jeff [1:13 PM]

[ Sunday, November 16, 2014 ]

 

Data Breach Response: Here's an interesting thumbsucker article on how to respond to a data breach.

Jeff [2:08 PM]

[ Friday, November 14, 2014 ]

 

$19,000 per victim?  That's the alleged cost per person of a HIPAA breach, although it's the cost if the breach victim is actually a victim of medical identity theft. 

Jeff [4:20 PM]

 

Are you a lawyer with covered entity clients?  Are you worried about HIPAA?  Want to know what your obligations are as a business associate?  You might want to check out this webinar next month.

Jeff [4:13 PM]

[ Thursday, November 13, 2014 ]

 

Ebola and HIPAA: I've heard lots of folks questioning how healthcare providers such as Texas Health Presbyterian Hospital here in Dallas were able to issue press releases and discuss the health condition and treatment of the Ebola patients they treated.  It's an interesting question: the providers can't talk about it unless the patients authorize them to do so, but they must also disclose data to governmental agencies when required by law to do so (whether those government agencies may then disclose the data depends on whether they are covered by HIPAA [usually not] or some other privacy law [usually are]).

However, what normally happens in high-profile medical cases, whether they be "epidemic-disease-fo-the-day" or some high-profile incident like a terrorist attack, is that the provider coordinates with the patients, asks them how much information they want disclosed (if any), and respects their wishes.

Here's a pretty good article on what Emory Healthcare did with their Ebola patients where the press was concerned.

Jeff [3:04 PM]

 

Oops: WellPoint email glitch puts colonoscopy test in the subject line.  WellPoint apparently currently believes this is not a breach, and they may be right (it may not exceed the "low probability of compromise" standard").

Jeff [2:45 PM]

[ Wednesday, November 12, 2014 ]

 

Encryption: This seems like a good place to implement data encryption.  It's not required, but sometimes it's just a really good idea.

Jeff [12:05 PM]

[ Tuesday, November 11, 2014 ]

 

HIPAA-compliant website issues: here's an interesting blog post on HIPAA issues encountered relative to a specialty pharmacy website hosting arrangement.

Jeff [7:27 AM]

[ Monday, November 10, 2014 ]

 

Ebola Reporting: Wondering how those hospitals are able to discuss the status and prognosis of their Ebola patients?  OCR has just recently published a Bulletin on "HIPAA Privacy in Emergency Situations" as a reminder to covered entities about the who/what/how/when of making these sorts of disclosures. 

Jeff [3:18 PM]

[ Wednesday, November 05, 2014 ]

 

HIPAA Private Cause of Action: Long-time HIPAAcrats know that there's no private cause of action for a HIPAA violation.  In other words, if your doctor violates HIPAA and discloses your PHI to the National Enquirer, you can't sue him for violating HIPAA.  Depending on where you live, you may be able to sue him for violating a similar state law, a state data breach law, a law requiring physicians to maintain confidentiality, or on common-law grounds such as invasion of privacy.  In such a suit, the doctor's failure to follow HIPAA would probably be pretty good evidence that he did not act reasonably, and would help your case.  But unless you had some statutory or common-law claim, you can't sue just for a violation of HIPAA.

A recent Connecticut case implies that you can sue for a HIPAA breach in that state.  Actually, a better description would be that "a violation of HIPAA regulations may constitute a violation of generally accepted standards of care."  In other words, you can sue for negligence based on a violation of HIPAA; you just can't sue based on the HIPAA violation alone.

Jeff [3:30 PM]

[ Wednesday, October 29, 2014 ]

 

It May Be a Dirty Little Secret, But It's Not Necessarily a HIPAA Violation: Venture Beat has figured out that a lot of healthcare providers text using unencrypted devices operating over regular cellular networks.  Yes, they do.  And yes, many of us strongly urge against them doing so.  But it's not necessarily a HIPAA violation to do so.  As I would've commented on the post itself if it didn't mean letting Venture Beat "manage my Google contacts":

To say "This is a clear violation of HIPAA" is fatuous and false. It's not very secure and not very smart; it could be a violation of an entity's policies and procedures; it could in some instances be a violation if it is absolutely and legally unreasonable to use such a communications device in such a fashion. But HIPAA is scalable and technologically neutral; encryption IS NOT A REQUIRED ELEMENT under HIPAA.

HIPAA covered entities should conduct risk analyses and do their best to secure their data as much as possible, including eliminating unsecure texting wherever possible. But just because it's a bad idea doesn't mean it's against the law (or, in this case, against the regulations).

Jeff [3:35 PM]

 

California AG's Data Breach Report: California healthcare providers (and other covered entities) (and other folks outside California) should be sure to read this.  She specifically calls on healthcare providers to "Consistently use strong encryption to protect medical information on laptops and on other portable devices and should consider it for desktop computers."  If this is what's happening in California, it's either happening in your state too, or will be soon.

Jeff [12:29 PM]

[ Thursday, October 23, 2014 ]

 

Sutter Health, Eisenhower Updates (California) : I've previously mentioned the Sutter Health desktop computer theft case, and the ensuing potential $4 billion class action case, that was dismissed because there was no proof that the data on the computer was ever actually accessed or used.  The state supreme court has upheld the appellate court's dismissal of the case.

Eisenhower ws facing a $500 million class action suit for the loss of a laptop containing names and personal information of 500,000 folks, but apparently no medical histories, conditions, or treatment.  Because of that, the case has been tossed.

Jeff [2:38 PM]

[ Tuesday, October 21, 2014 ]

 

Medical Identity Theft: It's becoming even more common.  Here's why.  Rigorously following HIPAA is the best preventive.

Jeff [3:30 PM]

[ Friday, October 17, 2014 ]

 

Ebola, Public Health, Emergency, and Related Disclosure Questions: Some of the AHLA ListServs are buzzing today with questions about how and why Texas Health Presbyterian Hospital (which is just over a mile from my house) has disclosed the names of the two nurses who have caught Ebola.  Normally, a hospital can't disclose the names of patients, except for treatment, payment, healthcare operations, with patient consent, or as required by law or otherwise allowed by HIPAA.  HIPAA allows covered entities to disclose PHI in emergency situations, and generally health care providers are required to disclose infectious disease information to state and federal epidemiology agencies.  Some have also speculated that Presby might have patient consent to make the disclosures, in which case they clearly would be allowed.

HHS has helpfully provided an FAQ relating to disclosures in the case of a bioterrorism threat of public health emergency, and has also provided a decision tool for healthcare providers faced with determining whether there is a public health emergency or emergency preparedness reason for a disclosure. 

Hat tip: Alan Goldberg.

Jeff [3:26 PM]

[ Monday, October 13, 2014 ]

 

Community Health Systems update: As previously reported, CHS was hacked.  The sequelae has started: one of the community hospitals in New Mexico has been sued, and the attorneys are seeking class certification.

The lesson here is that the severity of the breach and the actual harm caused by loss of confidentiality may be miniscule compared to the legal costs of just fighting a thousand different plantiff's lawyers.

Jeff [10:12 AM]

[ Friday, October 10, 2014 ]

 

Accounting for Disclosures: Have you been worrying about how to comply with the accounting for disclosures rule that HHS published way back in 2011?  No?  Hell, even I'd forgotten about it, even though I gave quite a few speeches and webinars about it.  It's a mess, and raised all kinds of issues based on who "touched" the file, not just to whom it was disclosed.  It was to have become effective  January 1, 2015.  However, HHS has just announced that they will delay the effectiveness and reopen the rule for comment.  That's the right thing for them to do.

People rarely ask for accountings of disclosures, and often do so for (illegitimate) aggressive or litigious purposes.  So making the industry jump through hoops for such a rare reason is sensible.

Jeff [11:39 AM]

[ Thursday, October 09, 2014 ]

 

Phase II HIPAA Audits: They're still coming.  Here's what to expect.

Jeff [1:50 PM]

[ Tuesday, September 16, 2014 ]

 

Get In Line: App developers are frustrated with the imprecision of HIPAA.  Actually, I'm not sure exactly what relief they are looking for.  HHS is not going to write regs that say, "you can't use PHI except for treatment, payment, or healthcare operations, unless you do it with a mobile app, then it's all OK, do whatever you want."

HIPAA is conceptual in nature; you've just got to understand that and deal with it.

Jeff [11:40 AM]

 

Mississippi CHS Data Breach Lawsuits: Suits are beginning to be filed in the CHS hacking case.  Class status is being sought.

Jeff [11:29 AM]

[ Monday, September 15, 2014 ]

 

Temple University Data Breach: This time it was a desktop computer that was stolen, with 3780 patients affected.  Not encrypted, of course.  This shows that, while it's an excellent idea to encrypt all mobile devices, don't forget about encrypting non-mobile devices as well (in this case, the non-mobile desktop went mobile when it was stolen).

Jeff [9:45 AM]

[ Friday, September 12, 2014 ]

 

Huntsville, AL Lab Data Breach: A clinical lab in my old hometown of Huntsville, Alabama is notifying patients, since their billing contractor put some of their data on a server that was accessible to Google searches.  They've notified 7,000 patients.  Presumably the lab had a business associate agreement with the billing company, and presumably that BAA will require the billing company to pay for the notification.

Is this "willful neglect"?  If so, expect a sizeable fine.

Jeff [9:57 AM]

[ Thursday, September 11, 2014 ]

 

Do You Have an Incident Response Plan in Ready Reserve? If you're not prepared, you're in trouble.

This isn't the first time I've told you this. . . .

Seriously, call me if you need help.

Jeff [8:06 PM]

 

Data Aggregators: Big Data is a big deal, and despite the protections of HIPAA, given enough data from non-HIPAA-covered sources, the right person (or computer) can figure out a lot about a person, potentially including medical data.  I discussed this in a radio interview this summer, when the press was buzzing about this, but here's another article on it.

Jeff [1:47 PM]

[ Wednesday, September 10, 2014 ]

 

OCR Audits are Coming: This isn't news, or at least it shouldn't be. 

And when OCR comes, the first thing they're going to ask for is documentation of (i) your initial risk analysis and any updates or further assessments and (ii) your current policies and procedures.  IF YOU DO NOT HAVE THIS DOCUMENTATION, . . . . well, it's not going to be pretty. 

You can't say you weren't warned.

Jeff [1:31 PM]

 

Can De-Identification Ruin Data for Research? My boy Daniel Barth-Jones has an article in FierceBigData discussing MOOCs, MUACs, and how concerns that de-identification might skew research results shouldn't be the death of deidentification or anonymization.

Jeff [1:06 PM]

[ Tuesday, September 09, 2014 ]

 

Get in Line: Tech companies want Congress to change HIPAA to make cloud computing easier.  Of all the reasons to change HIPAA, I don't think this is one (or if changes need making, they should be in the regs, not the law). 

Jeff [9:27 AM]

[ Wednesday, September 03, 2014 ]

 

Business Associate Agreement Deadline Approaching: the Omnibus Rule made a few relatively minor changes to the business associate agreement requirements, and imposed an initial deadline of September 23, 2013 for compliance.  However, it did allow a certain "grandfathering" of BAAs that met the then-existing requirements and were already in place; that grandfathering was not limitless, and only allowed covered entities and business associates to keep their existing BAAs in place for an additional year.  That year is about to end (NB: there's some confusion about whether September 22 or 23, 2014 is the appropriate date, but I don't think OCR will make that fine a distinction).

If you are still operating on BAAs from 2003, you definitely need to update them to include what was required under the Security Rule in 2005, as well as what's required by HITECH and Omnibus (2009 and 2013, respectively).  Now would be a good time to review your BAAs, particularly if you did not do so in 2013 or 2014.

One word of caution, though.  A lot of covered entities are in the last month of pushing through "updated" BAAs, demanding their business associate vendors sign their new forms because they are absolutely required.  All well and good, so far.  However, many of these covered entites (hospital systems, I'm looking at you) are adding new, non-required provisions such as indemnification, encryption, and off-shoring requirements.  In effect, they are trying to renegotiate their underlying agreements, and using the BAA requirement as a Trojan Horse.

My advice to covered entities: don't do that.  If you need to update the BAA to meet Omnibus, do what is necessary, and nothing more.  If you want to renegotiate the deal, or even if you want to require your BAs to jump through stricter hoops than you required before, that's OK, but be up front about it and don't try to hide behind the Omnibus Rule "required" changes.

My advice to business associates: read closely the new BAA, compare it with the old one, and call out your customers if they try to slide something by you. 

Let's all be open and honest out there, OK?

Jeff [5:19 PM]

[ Tuesday, September 02, 2014 ]

 

Texas Hospital Employee Indicted for HIPAA violation: Joshua Hippler worked at some hospital in East Texas (the DOJ isn't saying which one) and apparently took PHI for personal gain.  I'm sure there's more to the story, and will let you know when I find out more.

Jeff [8:17 PM]

 

Health Care and Identity Theft: Interesting article.  But the premise that data breaches in healthcare equal ID Theft isn't true.  Much of reportable healthcare data breaches do not include any of the data useful for identity thieves.  When lab test results are sent to the wrong office, or a hospital can't locate a piece of computer hardware, or someone steals a laptop that is subsequently scrubbed clean so it can be resold, and in each case there is a name but no social security number, date or birth, mother's maiden name, etc., the chances of identity theft are very low.  But it's still a HIPAA breach, and reportable.

That doesn't lessen the fact that medical identity theft is a big problem, and carries huge, life-threatening risks.  The industry should follow the FTC Red Flags Rule and implement triggers to detect medical identity theft, and work efficiently to correct bad medical records that are left behind. 

Jeff [9:06 AM]

[ Tuesday, August 26, 2014 ]

 

I keep hearing this, but not seeing it: Industry bracing for a "flood" of HIPAA fines.  I don't know if it will come to fruition, but I'm definitely scared of it happening.

Jeff [6:44 PM]

[ Friday, August 22, 2014 ]

 

Consumer EMR Q&A: Here's an interesting, if elementary, Q&A article from Kaiser Health on electronic medical records.

Jeff [8:28 AM]

[ Tuesday, August 19, 2014 ]

 

ICYMI: Rhode Island Hospital Pays Mass. AG for HIPAA Breach: In a rare cross-border reach, the Massachusetts attorney general fined a Rhode Island hospital (and the hospital paid the fine) for breaching the security of PHI of a bunch of Massachusetts residents.  The breach violated HIPAA, but also violated MA's stringent data encryption and breach law.  The MA statute purports to have a "long arm" reach (it applies to anyone who deals with the PHI of MA residents, regardless where the record-keeper is located), but it would be hard to the MA AG to achieve jurisdiction over actors in other states.  However, I suspect in this case the RI hospital gets MA Medicaid funds and otherwise may do business in MA, so they probably felt they had to play along. 

Jeff [1:42 PM]

[ Monday, August 18, 2014 ]

 

Community Health Systems: An APT hacker group got into Community Health System's database and stole names, SSNs and DOBs of 4.5 million patients of Community's physician network.  The good news: the hackers are usually looking for medical device development data, which they didn't get.  More good news: no credit card data got out.  But, it's still a big ole HIPAA breach. 

Jeff [1:21 PM]

[ Wednesday, August 13, 2014 ]

 

Weaponizing Your Breach Detection System: If you're a HIPAA covered entity, you need a breach detection system, even if it's just your normal access audit reviews plus your employees keeping their eyes and ears open for something funny.  The more sophisticated your systems and operations, the more formal your breach detection system should be.  For the bigger players, your breach detection system is probably not doing all it should.  Here's an interesting article on ways to change the focus, and thereby improve the product, of your breach detection system.

Jeff [4:10 PM]

[ Monday, August 11, 2014 ]

 

Baby Pictures = HIPAA Violation.  OK, this article has made a big splash, and it's generated a lot of talk in the HIPAAverse.  And it's generally accurate, but there's a lot unexplained around the margins.  Yes, baby pictures are PHI if the baby is/was a patient of the practice.  But a consent form is a pretty simple document, one that every covered entity should have as a handy and ready-to-use form, and it's simple to ask a parent/patient to sign it before you put their kid's picture up on the wall (it could even be part of the patient sign-in packet).  Pretty much everyone who provides you with a picture would be willing to do so. 

Jeff [2:15 PM]

[ Friday, August 01, 2014 ]

 

Hospital Accuses Mother of Patient of Violating HIPAA By Taking Pictures of Him During Appointment.  The hospital based its position on the fact that it has a policy that prohibits visitors from taking cell phone photos on hospital premises.  Of course, the mother is not a covered entity, and even if she was, as personal representative of her son, she'd be entitled to consent to the release of his PHI via the pictures.  But before condemning the hospital, keep this in mind: the hospital is also trying to prevent the mother from disclosing of the PHI of others besides the woman's son.  If her pictures include other patients, that could be a problem.  The hospital is reviewing its policies, and I suspect a reasonable accomodation will be reached.

Jeff [10:40 AM]

[ Thursday, July 31, 2014 ]

 

Phase 2 of OCR's Audit Program is Coming UpGood article by McDermott.

Jeff [10:40 PM]

[ Tuesday, July 29, 2014 ]

 

Medical Identity Theft: Just a quick example of how it can go wrong.  If you're a provider, seriously consider using the FTC "Red Flags Rule" materials to prevent medical identity theft: not only will your patients be safer, so will your pocketbook.  Don't forget that if you treat patient A and patient A has stolen B's identity, you'll end up billing B, and when B's insurance finds out, you'll have to reimburse the money; and A will likely be long gone at that point, and you'll be left holding the bag.

You may not be required to implement the FTC policies, but you certainly should consider them.

Jeff [11:09 AM]

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