Healthcare Data Privacy

UPMC Data Breach Lawsuit Reinstated by Pennsylvania Supreme Court

Posted November 28, 2018 by HIPAA Journal

A lawsuit filed by employees affected by a data breach at University of Pennsylvania Medical Center (UPMC) has been revived by the Pennsylvania Supreme Court.

The lawsuit was filed after hackers stole the information of approximately 62,000 current and former UPMC employees in a data breach discovered by UPMC in February 2014. The stolen information included names, addresses, Social Security numbers, tax information, and bank account numbers. The information was used to file fraudulent tax returns in employees’ names to receive tax refunds.

According the lawsuit, “As a result of UPMC’s negligence, employees incurred damages relating to fraudulently filed tax returns and are at an increased and imminent risk of becoming victims of identity theft crimes, fraud and abuse.”

UPMC argued that there is no cause of action for negligence as no property damage or physical injury was alleged by its employees. In Pennsylvania, no cause of action exists for negligence that solely results in economic losses.

The lawsuit was thrown out by two lower courts; however, last week the lawsuit was reinstated by the state’s high court. Justice Max Baer wrote in the opinion that UPMC had a responsibility to address risks that arise from the collection of sensitive data and had a legal duty to protect sensitive information provided by its employees. UPMC breached its common-law duty to exercise reasonable care and safeguard information stored on an Internet-accessible computer system. All six Supreme Court judges agreed that UPMC was responsible for protecting the sensitive data of its employees.

Baer confirmed that “Under Pennsylvania’s economic loss doctrine, recovery for purely pecuniary damages is permissible under a negligence theory provided that the plaintiff can establish the defendant’s breach of a legal duty arising under common law that is independent of any duty assumed pursuant to contract.”

The case will now return to the lower court for review. If UPMC is found to have been negligent, UPMC may be required to pay monetary damages to employees who suffered economic losses as a result of the data breach.

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2.65 Million Atrium Health Patients Impacted by Business Associate Data Breach

Posted November 28, 2018 by HIPAA Journal

A data breach has been reported by AccuDoc Solutions Inc., a provider of healthcare billing services, that resulted in the exposure of the protected health information of 2,650,000 patients of Atrium Health.

Morrisville, NC-based AccuDoc Solutions prepares bills for patients and operates the online payment system used by Atrium Health, a network of 44 hospitals throughout North Carolina, South Carolina and Georgia.

On October 1, 2018, AccuDoc Solutions notified Atrium Health that some of its databases had been compromised. The breach investigation revealed hackers had gained access to AccuDoc Solutions databases between September 22 and September 29, 2018.

An extensive forensic investigation into the attack confirmed that patient information had been compromised, but the information stored in its databases could only be viewed. No PHI was downloaded by the attackers nor distributed via other channels.

AccuDoc Solutions reports that the breach was due to a security vulnerability at a third-party vendor. The business relationship with that vendor has now been terminated. AccuDoc Systems has locked out the hackers and has enhanced its security measures to prevent future attacks.

Atrium Health said the information compromised in the attack was limited to patients’ names, addresses, invoice numbers, account balances, service dates, and health insurance information. Approximately 700,000 Social Security numbers were also compromised; however, no sensitive financial information or medical records were affected.

“We are notifying the patients and guarantors who may have been impacted by this incident. We take cybersecurity very seriously, and we’ve worked very hard to determine exactly what happened, and how to prevent it from happening again,” said a spokesperson for Atrium Health. “The fact that even one record was accessed is one too many. Our patients expect us to keep all of their information private, which is why we took action so quickly.”

Atrium Health is now notifying all affected patients and has offered credit monitoring and identity theft protection services to patients impacted by the breach.

AccuDoc serves approximately 50 other healthcare providers; however only one other client was affected by the breach: Baylor Medical Center in Frisco, TX. Approximately 40,000 Baylor Medical Center patients were affected.

Based on the estimated number of individuals affected, this is the largest healthcare data breach since the 3,466,120-record breach at Newkirk Products Inc., that was reported to OCR in September 2016. It is the eleventh largest healthcare data breach reported since OCR started publishing breach summaries in 2009.

Largest Ever Healthcare Data Breaches

Rank	Entity	Entity Type	Individuals Affected	Breach Type	Date
1	Anthem Inc.	Health Plan	78,800,000	Hacking/IT Incident	Feb-15
2	Premera Blue Cross	Health Plan	11,000,000	Hacking/IT Incident	Mar-15
3	Excellus Health Plan, Inc.	Health Plan	10,000,000	Hacking/IT Incident	Sep-15
4	Science Applications International Corporation	Business Associate	4,900,000	Loss	Nov-11
5	University of California, Los Angeles Health	Healthcare Provider	4,500,000	Hacking/IT Incident	Jul-15
6	Community Health Systems Professional Services Corporation	Business Associate	4,500,000	Hacking/IT Incident	Aug-14
7	Advocate Health and Hospitals Corporation, dba Advocate Medical Group	Healthcare Provider	4,029,530	Theft	Aug-13
8	Medical Informatics Engineering	Business Associate	3,900,000	Hacking/IT Incident	Jul-15
9	Banner Health	Healthcare Provider	3,620,000	Hacking/IT Incident	Aug-16
10	Newkirk Products, Inc.	Business Associate	3,466,120	Hacking/IT Incident	Aug-16
11	AccuDoc Solutions Inc.	Business Associate	2,650,000	Hacking/IT Incident	Nov-18
12	21st Century Oncology	Healthcare Provider	2,213,597	Hacking/IT Incident	Mar-16

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OCR Fines Allergy Practice $125,000 for Impermissible PHI Disclosure

Posted November 26, 2018 by HIPAA Journal

The Department of Health and Human Services’ Office for Civil Rights (OCR) has fined a Hartford allergy practice $125,000 to revolve potential violations of the HIPAA Privacy Rule.

On October 6, 2015, OCR received a copy of a civil rights complaint that had been filed with the Department of Justice (DOJ). The complainant alleged Allergy Associates of Hartford – A Connecticut healthcare provider that specializes in treating patients with allergies – had impermissibly disclosed her protected health information to a TV reporter.

The complainant had previously contacted a local TV station after she had been turned away from the allergy practice because of her service animal. The TV reporter subsequently contacted the practice seeking comment. A physician at the practice spoke to the reporter and impermissibly disclosed some of the patient’s protected health information.

OCR’s investigation confirmed there had been an impermissible disclosure of PHI, in violation of the HIPAA Privacy Rule – 45 C.F.R. § 164.502(a).

The physician in question had already been advised by the practice’s Privacy Officer to ignore the reporter’s request for comment or to respond with ‘no comment.’ However, the physician chose to speak with the reporter and disclosed some of the patient’s PHI. OCR viewed the disclosure as ‘a reckless disregard for the patient’s privacy rights.’

After Allergy Associates was contacted by OCR about the privacy breach, Allergy Associates failed to apply appropriate sanctions against the physician concerned for a violation of the practice’s privacy policies and procedures, as is required by the HIPAA Privacy Rule – 45 C.F.R. §164.530(e)(l).

“When a patient complains about a medical practice, doctors cannot respond by disclosing private patient information to the media,” explained OCR Director Roger Severino. “Because egregious disclosures can lead to substantial penalties, covered entities need to pay close attention to HIPAA’s privacy rules, especially when responding to press inquiries.”

Allergy Associates agreed to settle the case with no admission of liability. In addition to paying a financial penalty of $125,000, Allergy Associates has agreed to adopt a robust corrective action plan which includes two years of OCR monitoring the practice’s compliance with HIPAA Rules.

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NIST Releases Draft Paper on Telehealth and Remote Monitoring Device Cybersecurity

Posted November 23, 2018 by HIPAA Journal

The National Institute of Standards and Technology’s National Cybersecurity Center of Excellence (NCCoE) has released a draft paper covering the privacy and security risks of telehealth and remote monitoring devices and best practices for securing the telehealth and remote monitoring ecosystem.

Patient monitoring systems have traditionally been deployed within healthcare facilities; however, there has been an increase in the use of remote patient monitoring systems in patients’ homes in recent years. While these systems are straightforward to secure in a controlled environment such as a hospital, the use of these systems in patients’ homes introduces new risks.

Managing the risks and ensuring the remote monitoring systems and devices have an equivalent level of security as in-house systems can be a major challenge.

The purpose of the paper is to create a reference architecture which addresses the security and privacy risks and provides practical steps that can be taken to improve the overall security of the remote patient monitoring environment.

The paper addresses cybersecurity concerns related to the use of the devices in patients’ homes, the use of home networks, and patient-owned devices and identifies cybersecurity measures that can be implemented by healthcare organizations with RPM and video telehealth capabilities.

“The project team will perform a risk assessment on a representative RPM ecosystem in the laboratory environment, apply the NIST Cybersecurity Framework and guidance based on medical device standards, and collaborate with industry and public partners,” explained NCCoE.

NCCoE has evaluated the following functions of the devices:

Connectivity of devices and applications deployed on patient-owned devices such as smartphones, tablets, laptops, and desktop computers
How applications transmit monitoring data to healthcare providers
The ability for patients to interact with their point of contact to initiate care
The ability for data to be analyzed by healthcare providers to identify trends and issue alerts to clinicians about issues with patients
The ability for data to be shared with electronic medical record systems
The ability for patients to initiate videoconference sessions through telehealth applications
The ability for application patches and updates to be installed
How a healthcare provider can establish a connection with a remote monitoring device to obtain patient telemetry data
How a healthcare provider can connect to a remote monitoring device to update the device configuration

The paper does not cover risks specific to third party telehealth platform providers nor does it evaluate device vulnerabilities and defects.

Stakeholders have been invited to comment on the draft paper. Comments will be accepted until December.

The guidance document can be downloaded on this link.

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53% Of Healthcare Data Breaches Due to Insiders and Negligence

Posted November 22, 2018 by HIPAA Journal

The healthcare industry has had more than its fair share of hacking incidents, but the biggest threat comes from within. The actions of healthcare providers, health insurers, and their employees cause more breaches than hacks, malware, and ransomware attacks.

Researchers at Michigan State University and Johns Hopkins University analyzed data breaches reported to the Department of Health and Human Services’ Office for Civil Rights (OCR) over the past 7 years and found that more than half of breaches were the result on internal negligence.

The research study, which was recently published in the journal JAMA Internal Medicine, is a follow-on from a 2017 study that explored the risk of hospital data breaches and the types of hospitals that were most prone to data breaches. While the previous research cast light on which hospitals were most vulnerable, little information was available on the main causes of the breaches. The latest study addresses that gap in knowledge.

The researchers performed a retrospective analysis of the 1,183 healthcare data breaches reported to OCR between October 21, 2009 and December 31, 2017. Those breaches resulted in the exposure of 164 million healthcare records.

The analysis was limited to breaches of 500 or more records, as OCR does not publish summaries of smaller breaches. The breach reports split data breaches into six categories; hacking/IT incidents, unauthorized access/disclosure incidents, theft, loss, improper disposal, and unknown. 77.6% of breaches were correctly classified and 22.24% were misclassified or the cause was unknown.

The researchers discovered that theft of data by third-parties or unknown individuals was the single leading breach cause, accounting for 32.5% of incidents, with mailing errors in second place (10.5%), followed by theft by current or former employees (9%). Internal/external hacking incidents accounted for around 20% of breaches, although those incidents involved 133.8 million of the 164 million compromised records. 53% of all breaches were found to have originated from inside healthcare organizations.

“One quarter of all the cases were caused by unauthorized access or disclosure – more than twice the amount that were caused by external hackers,” said Xuefeng Liang, associate professor of accounting and information systems at MSU’s Eli Broad College of Business and lead author of the study. “This could be an employee taking PHI home or forwarding to a personal account or device, accessing data without authorization, or even through email mistakes, like sending to the wrong recipients, copying instead of blind copying or sharing unencrypted content.”

An analysis of the location of breached PHI showed 46.1% of breaches involved mobile devices, paper records were involved in 28.7% of breaches and 29.3% of breaches involved network servers.

Typically, the actions taken by healthcare organizations post-breach were the use of encryption software, restricting the use of mobile devices, switching to digital records, improving physical security, strengthening firewalls and other cybersecurity protections, and enhancing monitoring and auditing.

While many breaches involve little risk to patients – the accidental disclosure of a name and address to another patient – the consequences of some breaches can be severe: For patients as well as the breached entity. Anthem Inc’s 78.8 million record breach in 2015 was used as an example. Many breach victims had tax returns filed in their names, resulting in financial losses.

In addition to the considerable cost of mitigating the breach – improving cybersecurity protections; hiring forensic investigators, cybersecurity consultants, and legal advisors; printing and mailing notification letters; providing credit monitoring services for breach victims – Anthem had to cover the cost of defending multiple class action lawsuits, which were ultimately settled for $115 million. Anthem has also recently been fined $16 million by OCR to resolve the HIPAA violations uncovered during its breach investigation. Anthem’s reputation has also been tarnished by the breach, the cost of which is difficult to calculate.

The findings of the study are important. “Healthcare entities must understand the causes of PHI breaches if they aim to effectively manage the trade-off between wider access or higher efficiency and more security,” explained the researchers in the paper.

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OIG: Cybersecurity One of Top 10 Management and Performance Challenges Faced by HHS

Posted November 22, 2018 by HIPAA Journal

The Department of Health and Human Services’ Office of Inspector General (OIG) has published its annual report on the top management and performance challenges faced by the HHS.

The report lists 12 major challenges that the HHS must overcome to ensure the department achieves its aims. Given the scale of the current opioid crisis in the United States and its impact, the prevention and treatment of opioid misuse has topped this year’s list.

The report also draws attention to the importance of cybersecurity protections to mitigate threats to be confidentiality, integrity, and availability of health data. Protecting HHS data, systems, and beneficiaries from cybersecurity threats made 10^th spot in this year’s list.

In the report, OIG explained that “data management, use, and security are essential to the effective and efficient operation of HHS’ agencies and programs.” Ensuring the integrity of IT systems and the confidentiality and availability of healthcare data are critically important to the health and well-being of Americans.

The HHS has a $5 billion annual budget for IT; a proportion of which is devoted to cybersecurity to ensure data and IT systems are kept secure. The HHS faces major challenges securing its highly complex systems and must store ever increasing volumes of data securely: Data which are spread across multiple locations and are accessible by many entities and individuals. Further, in recent years there has been a major expansion in the use of IoT technology and networked devices, which introduce many new risks. The HHS must ensure its internal systems are protected and is required to oversee the security of cloud data and ensure providers, contractors, and grantees are adhering to cybersecurity best practices.

OIG explained that the types of data used, stored, and transmitted by the HHS are of high value to cybercriminals and are up to ten times more valuable than credit card numbers. Consequently, the HHS is a major target for hackers.

If the HHS fails to secure its data and systems, not only could patients come to harm, it has potential to hinder Federal initiatives such as the NIH ‘All of Us’ Research program, preventing them from achieving their full potential.

OIG reports that the HHS lacks robust resources to prepare cybersecurity staff to respond to cyberattacks and has not thoroughly tested its incident response and recovery procedures, although significant progress has been made in improving cybersecurity protections.

The HHS budget for 2017 allocated $50 million to meet the HHS’s cybersecurity needs and ensure that sensitive data, and the systems on which the information is stored, are kept secure. Part of that budget has been spent on monitoring tools to ensure security compliance, threat hunting technologies have been deployed in some HHS agencies, and the staff of all agencies is now provided with ongoing cybersecurity awareness training.

Cybersecurity testing is conducted in conjunction with the Department of Homeland Security and there is a continuous dialogue across HHS agencies on the cybersecurity and operational challenges faced by the department. While significant progress has been made, there is still a great deal of work to be done.

OIG explained that the HHS needs to develop a well-designed contingency program for cyber-defenses, in addition to those for natural disasters. HHS must also take a more proactive approach to identify and address current and future vulnerabilities before they are exploited, including addressing vulnerabilities that have previously been discovered by OIG and other agencies. HHS must also focus on its capabilities to respond efficiently to a wide range of cybersecurity threats.

The HHS also needs to assist healthcare organizations address threats, which is best achieved through information sharing. Dissemination of threat information and strategies to mitigate threats is essential to ensure that cyberthreats do not result in widespread disruption in the healthcare sector.

The HHS should therefore continuously seek opportunities to partner with other government agencies, academia, private sector companies, and state governments to share cybersecurity information on emerging risks, threats, and best practices.

The HHS must also engage the healthcare and public health sectors to ensure that threat intelligence is communicated effectively and foundational cybersecurity best practices are made available.

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October 2018 Healthcare Data Breach Report

Posted November 21, 2018 by HIPAA Journal

Our October 2018 healthcare data breach report shows there has been a month-over-month increase in healthcare data breaches with October seeing more than one healthcare data breach reported per day.

31 healthcare data breaches were reported by HIPAA-covered entities and their business associates in October – 6 incidents more than the previous month. It should be noted that one breach at a business associate was reported to OCR as three separate breaches.

The number of breached records in September (134,006) was the lowest total for 6 months, but the downward trend did not continue in October. There was a massive increase in exposed protected health information (PHI) in October. 2,109,730 records were exposed, stolen or impermissibly disclosed – 1,474% more than the previous month. In October, the average breach size was 68,055 records and the median was 4,058 records.

Largest Healthcare Data Breaches in October 2018

There were 11 healthcare data breaches of more than 10,000 records reported in October – A 120% increases from the five 10,000+ record breaches in September. The largest healthcare data breach in October resulted in the exposure of 1.24 million records: An unauthorized access/disclosure incident at Employees Retirement System of Texas. A flaw in its ERS Online portal allowed members to view the PHI of other members.

566,217 records were exposed in a breach at Banker’s Life, a division of CNO Financial Group Inc., also an unauthorized access/disclosure incident. Employee credentials were stolen and used to gain access to company websites, resulting in the exposure and potential theft of policyholder and applicant information.

Rank	Name of Covered Entity	Covered Entity Type	Individuals Affected	Type of Breach
1	Employees Retirement System of Texas	Health Plan	1248263	Unauthorized Access/Disclosure
2	CNO Financial Group, Inc.	Health Plan	566217	Unauthorized Access/Disclosure
3	Health First, Inc	Healthcare Provider	42000	Hacking/IT Incident
4	Jones Eye Center, P.C.	Healthcare Provider	39605	Hacking/IT Incident
5	Gold Coast Health Plan	Business Associate	37005	Hacking/IT Incident
6	The May Eye Care Center	Healthcare Provider	30000	Hacking/IT Incident
7	CJ Elmwood Partners, L.P.	Healthcare Provider	22416	Hacking/IT Incident
8	Minnesota Department of Human Services	Health Plan	20800	Hacking/IT Incident
9	Catawba Valley Medical Center	Healthcare Provider	20000	Hacking/IT Incident
10	National Ambulatory Hernia Institute	Healthcare Provider	15974	Hacking/IT Incident

Causes of October 2018 Healthcare Data Breaches

Unauthorized access/disclosure breaches resulted in the highest number of compromised records, but hacking/IT incidents were more common in October. October saw 16 hacking/IT incidents reported, 11 unauthorized access/disclosure incidents, and four theft incidents. There were no reports of lost PHI/ePHI and no improper disposal incidents.

Healthcare Records Exposed by Breach Cause

Location of Breached Protected Health Information

Phishing is arguably the biggest cyber threat faced by healthcare organizations and October saw many phishing attacks reported by healthcare providers. In October, there were 9 incidents involving PHI exposure via email. There were also 9 network server-related breaches, which included hacks, malware, and ransomware attacks.

Data Breaches by Covered-Entity Type

In terms of the number of incidents, healthcare providers were the worst hit by data breaches in October with 20 reported breaches, followed by health plans/health insurers with 7. Four HIPAA business associate breaches were reported, three of which were by the same business associate – HealthFitness. One further breach had some business associate involvement.

In terms of the number of exposed records, health plans/insurers fared worse than other HIPAA-covered entities. 1,848,235 healthcare records were exposed at health plans/insurers, 221,994 healthcare records were exposed in healthcare provider breaches, and 39,501 records exposed by business associates.

Healthcare Data Breaches by State

Texas was worst affected by healthcare data breaches in October. 5 breaches were reported by covered entities/business associates based in Texas. California, Connecticut, Illinois, and Washington each had 3 breaches reported. There were two breaches reported in each of Florida, Iowa, Indiana, and Pennsylvania. Minnesota, Missouri, North Carolina, New Mexico, Oklahoma, and Oregon had one breach apiece.

Penalties for HIPAA Violations in October

After a period of quiet on the HIPAA penalty front, the Department of Health and Human Services’ Office for Civil Rights announced three settlements in September related to filming patients without consent. There were followed up in October with a massive fine for Anthem Inc.

The Anthem Inc., HIPAA violation penalty was expected, and given the scale of the breach (78.8 million records), the penalty was likely to be large. After assessing the extent of HIPAA violations, the scale of the breach, and its impact, OCR fined Anthem $16,000,000. The previous largest ever HIPAA penalty was $5,550,000 (Advocate Health Care Network, 2016)

In October, a multi-state action against the health insurer Aetna was concluded and settlements were reached to resolve the HIPAA violations. The penalties related to the impermissible disclosure of 13,160 plan members’ HIV/AIDS diagnoses via a mailing. Settlements were reached with Connecticut, New Jersey, and the District of Columbia totaling $640,170. Washington was also part of the multi-state action, but the settlement amount has not yet been decided.

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AMIA Calls for Greater Alignment of Federal Data Privacy Rules

Posted November 20, 2018 by HIPAA Journal

The American Medical Informatics Association (AMIA) is calling for the Trump Administration to tighten data privacy rules through greater alignment of HIPAA and the Common Rule and adoption of a more integrated approach to privacy that includes both the healthcare sector and consumer sector.

The call follows a request for comment by the NTIA to initiate a conversation about consumer privacy. In a letter to the National Telecommunications and Information Administration (NTIA), a division of the Department of Commerce, AMIA explained that its comments are informed by extensive experience of dealing with both the Health Insurance Portability and Accountability Act and the Federal Protections for Human Subjects Research (Common Rule).

Currently, there is a patchwork of federal and state regulations that complicates compliance and creates information sharing challenges which results in ‘perverse outcomes’ due to different interpretations of existing privacy policies.

AMIA illustrated the problem of the current patchwork of privacy policies using Pennsylvania and New Jersey as an example. Pennsylvania and New Jersey are neighboring states, but they have different policies covering HIV/AIDS data. If an HIV/AIDS patient from Pennsylvania was to visit a hospital in New Jersey, information on their HIV/AIDS diagnosis would not be accessible by clinicians in New Jersey, even though the information has high importance in treatment decisions. The patient would also be unlikely to receive their data from the New Jersey hospital to take back to their healthcare provider in Pennsylvania.

“AMIA encourages the administration to ensure that federal rules lay a common foundation across jurisdictional and geographic boundaries while also providing a process for jurisdictions to address local needs and norms.”

In recent years there has been a significant increase in consumer devices and information systems that record similar information to medical devices and healthcare information systems. The line between the two has been blurred. Action is therefore required to develop concordant privacy policies across health and consumer data ecosystems.

HIPAA was introduced 22 years ago in 1996 at a time when healthcare organizations were predominantly using paper records. While HIPAA has been updated to account for the shift to electronic records, AMIA points out that the adoption of health-related technologies that were unavailable in 1996 has resulted in the formation of gaps that now endanger patient privacy.

The changes made to HIPAA through the introduction of the Privacy Rule have ensured that patients have access to their health data and greater control over what is done with that information. What is now required are similar rights and protections for consumers.

While AMA does not suggest that either HIPAA or the Common Rule should be applied to the consumer data ecosystem, both “should serve as important and informative inputs to [the] conversation on consumer data privacy.”

AMA has called for the Federal Trade Commission (FTC) to develop a consumer data strategy that “Supports trust, safety, efficacy, and transparency across the proliferation of commercial and non-proprietary information resources,” and suggests that the time is right to develop an “ethical framework around the collection, use, storage, and disclosure of the personal information consumers may provide to organizations.”

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Do HIPAA Rules Create Barriers That Prevent Information Sharing?

Posted November 19, 2018 by HIPAA Journal

The HHS has drafted a Request for Information (RFI) to discover how HIPAA Rules are hampering patient information sharing and are making it difficult for healthcare providers to coordinate patient care.

HHS wants comments from the public and healthcare industry stakeholders on any provisions of HIPAA Rules which are discouraging or limiting coordinated care and case management among hospitals, physicians, patients, and payors.

The RFI is part of a new initiative, named Regulatory Sprint to Coordinated Care, the aim of which is to remove barriers that are preventing healthcare organizations from sharing patient information while retaining protections to ensure patient and data privacy are protected.

The comments received through the RFI will guide the HHS on how HIPAA can be improved, and which policies should be pursued in rulemaking to help the healthcare industry transition to coordinated, value-based health care.

The RFI was passed to the Office of Management and Budget for review on November 13, 2018. It is currently unclear when the RFI will be issued.

Certain provisions of HIPAA Rules are perceived to be barriers to information sharing. The American Hospital Association has spoken out about some of these issues and has urged the HHS to take action.

While there are certainly elements of HIPAA Rules that would benefit from an update to improve the sharing of patient health information, in some cases, healthcare organizations are confused about the restrictions HIPAA places on information sharing and the circumstances under which PHI can be shared with other entities without the need to obtain prior authorization from patients.

The feedback HHS is seeking will be used to assess what aspects of HIPAA are causing problems, whether there is scope to remove certain restrictions to facilitate information sharing, and areas of misunderstanding that call for further guidance to be issued on HIPAA Rules.

HIPAA does permit healthcare providers to share patients’ PHI with other healthcare providers for the purposes of treatment or healthcare operations without authorization from patients. However, there is some confusion about what constitutes treatment/healthcare operations in some cases, how best to share PHI, and when it is permissible to share PHI with entities other than healthcare providers. Simplification of HIPAA Rules could help in this regard, as could the creation of a safe harbor for good faith disclosures of PHI for the purposes of case management and care co-ordination.

While the HHS is keen to create an environment where patients’ health information can be shared more freely, the HHS has made it clear is that there will not be any changes made to the HIPAA Security Rule. Healthcare providers, health plans, and business associates of HIPAA-covered entities will still be required to implement controls to ensure risks to the confidentiality, integrity, and availability of protected health information are managed and reduced to a reasonable and acceptable level.

In addition to a general request for information, the HHS will specifically be seeking information on:

The methods of accounting of all disclosures of a patient’s protected health information
Patients’ acknowledgment of receipt of a providers’ notice of privacy practices
Creation of a safe harbor for good faith disclosures of PHI for purposes of care coordination or case management
Disclosures of protected health information without a patient’s authorization for treatment, payment, and health care operations
The minimum necessary standard/requirement.

While the RFI is likely to be issued, there are no guarantees that any of the comments submitted will result in HIPAA rule changes.

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