Healthcare Data Privacy

Is Google Hangouts HIPAA Compliant?

Posted by HIPAA Journal

Is Google Hangouts HIPAA compliant? Can Google Hangouts be used by healthcare professionals to transmit and receive protected health information (PHI)?

Is Google Hangouts HIPAA Compliant?

Healthcare organizations frequently ask about Google services and HIPAA compliance, and one product in particular has caused some confusion is Google Hangouts. Google Hangouts is the latest incarnation of the Hangouts video chat system, and has taken the place of Huddle (Google+ Messenger). Google Hangouts is a cloud-based communication platform that incorporates four different elements: Video chat, SMS, VOIP, and an instant messaging service.

Google will sign a business associate agreement for G Suite, which currently covers the following Google core services

  • Gmail
  • Calendar
  • Google Drive (Includes Google Docs, Google Sheets, Google Slides, and Google Forms)
  • Apps Script
  • Keep
  • Sites
  • Jamboard
  • Google Cloud Search
  • Vault (If applicable)
  • Google Hangouts (Chat messaging)
  • Hangouts Meet

The Business Associate Agreement does not cover Google Groups, Google Contacts, and Google+, none of which can be used in conjunction with protected health information. Google also advises users to disable the use of non-core services in relation to G suite – for example YouTube, ​Blogger ​and Google ​Photos.

So, certain elements of Google Hangouts are HIPAA compliant and can be used by HIPAA covered entities without violating HIPAA Rules, provided that prior to the use of the services with PHI, the covered entity has entered into a business associate agreement with Google.

However, even with a BAA in place, not all elements of Google Hangouts are HIPAA compliant, so covered entities must exercise caution. Video chat for instance, is not covered by the BAA so cannot be used, and neither the SMS and VOIP options.

To help make Google Hangouts HIPAA compliant, Google has released a guide for healthcare organizations.

Google Hangouts HIPAA Compliance Depends on Users

If you decide to allow the use of Google Hangouts in your organization, it important to address the allowable uses of Google Hangouts with respect to PHI through policies and procedures. Staff must be trained on the correct use of the platform, and instructed which elements of Google Hangouts can be used and which are prohibited. If video chat is important for your organization, you should seek a HIPAA-compliant alternative platform.

As we have mentioned in a previous post, simply obtaining a BAA from Google is no guarantee of HIPAA compliance – that will depend on how Google services are configured and how they are used – See this page for further information of G Suite HIPAA Compliance.

Don’t Forget to Implement Additional Safeguards for Mobile Devices

One area where HIPAA-covered entities could easily violate HIPAA Rules is the use of Google Hangouts on mobile devices. Google does have excellent security controls that can alert users to potential unauthorized access of their Google account. These should be configured to ensure inappropriate access attempts are identified rapidly. Controls should also be implemented on mobile devices to ensure that the devices are protected in case of loss or theft.

Access controls on the device should be implemented to prevent the device, and any ePHI stored on it, from being easily accessed. Policies and procedures should also be developed to ensure lost and stolen devices are reported promptly, and actions taken to secure accounts. It is also recommended to implement controls that allow lost and stolen devices to be located, locked, and remotely wiped.

The post Is Google Hangouts HIPAA Compliant? appeared first on HIPAA Journal.

President Trump Nominates Alex Azar for HHS Secretary

Posted by HIPAA Journal

Former Deputy Secretary of the Department of Health and Human Services, Alex Azar, is tipped to take over from former Secretary Tom Price after receiving the presidential nomination for the role. Azar previously served as general counsel to the HHS and Deputy Secretary during the George W. Bush administration.

President Trump confirmed on Twitter that he believes Azar is the man for the job, tweeting “Happy to announce, I am nominating Alex Azar to be the next HHS Secretary. He will be a star for better healthcare and lower drug prices!”

The position of Secretary of the Department of Health and Human Services was vacated by former Secretary Tom Price in September, following revelations about his controversial use of military aircraft and expensive charter flights to travel around the country.

While there were several potential candidates tipped to receive the nomination, including commissioner of the Food and Drug Administration, Scott Gottlieb, and administrator of the Centers for Medicare and Medicaid Services, Seema Verma, President Trump has made a controversial choice.

Alex Azar is a trained lawyer, but has spent the past ten years working in the pharmaceutical industry – an industry regulated by the HHS. In 2007, Azar joined pharmaceutical giant Eli Lilly taking on the role of senior vice president of corporate affairs and communications before becoming the head of the U.S. division of the firm until January 2017, when he left to start up his own consulting firm.

The nomination of Azar has raised many eyebrows. While President Trump has tweeted that he sees Azar as the man to help lower drug prices, Eli Lilly has attracted considerable criticism in the past for hikes in drug prices, notably for price rises to Insulin, one of the firm’s major pharmaceutical products. President Trump has previously claimed the pharmaceutical industry is ‘getting away with murder’ setting prices for their products.

Democrats have already expressed skepticism about how Azar would be able to help lower healthcare costs, not sharing Trump’s optimistic view that Azar can help drive prices down.

Azar has also been a harsh critic of the Affordable Car Act, sharing President’s Trump’s view that the ACA should be repealed. Despite repeated attempts, the failure to repeal ACA will mean that if appointed, Azar will be responsible for overseeing enforcement of the ACA.

Before Azar can take the helm of the Department of Health and Human Services, he must first be approved by Congress. Azar’s record while serving in the pharmaceutical industry is certain to be scrutinized, as will his commitment to enforcing the Affordable Care Act that he has previously strongly opposed.

The post President Trump Nominates Alex Azar for HHS Secretary appeared first on HIPAA Journal.

In What Year Was HIPAA Passed into Legislature?

Posted by HIPAA Journal

The Health Insurance Portability and Accountability Act or HIPAA was passed into legislature on August 21, 1996, when Bill Clinton added his signature to the bill.

Initially, the purpose of HIPAA was to improve portability and continuity of health insurance coverage, especially for employees that were between jobs. HIPAA also standardized amounts that could be saved in pre-tax medical savings accounts, prohibited tax-deduction of interest on life insurance loans, enforced group health plan requirements, simplified the administration of healthcare with standard codes and practices, and introduced measures to prevent healthcare fraud.

Many of the details of the five titles of HIPAA took some time to be developed, and several years passed before HIPAA Rules became enforceable. The HIPAA Enforcement Rule, which allows the Department of Health and Human Services’ Office for Civil Rights to impose financial penalties for noncompliance with HIPAA Rules, was not passed until February 16, 2006 – A decade after HIPAA was first introduced.

There have been several important dates in the past two decades since HIPAA was originally passed – Notably the introduction of the HIPAA Privacy Rule, HIPAA Security Rule, HIPAA Breach Notification Rule, and the HIPAA Omnibus Rule.

The HIPAA Privacy Rule introduced many provisions to better protect the privacy of patients. The Security Rule was primarily concerned with the security of electronic protected health information. The Breach Notification Rule ensures that all breaches of protected health information are reported, while the Omnibus Rule introduced a broad range of changes, including new requirements required by the Health Information Technology for Economic and Clinical Health (HITECH) Act.

Four key updates to HIPAA legislation are detailed below.

The Privacy Rule of HIPAA Passed into Legislature

The Privacy Rule of HIPAA was passed into legislature on December 28, 2000. The official name of the update to HIPAA is the “Standards for Privacy of Individual Identifiable Health Information.” The HIPAA Privacy Rule compliance date was April 14, 2003.

The HIPAA Privacy Rule details the allowable uses and disclosures of protected health information without first obtaining consent from patients. The HIPAA Privacy Rule also gives patients the right to obtain copies of their health data from HIPAA-covered entities.

The Security Rule of HIPAA Passed into Legislature

The Security Rule of HIPAA was passed into legislature on April 21, 2003, although the effective date was not until April 21, 2005. While the HIPAA Privacy Rule was concerned with all forms of protected health information, the HIPAA Security Rule is primarily concerned with the creation, use, storage and transmission of electronic PHI. The HIPAA Security Rule requires administrative, physical, and technical safeguards to be introduced to keep PHI secure. The Security Rule also introduced requirements for when PHI is no longer required.

The Breach Notification Rule of HIPAA Passed into Legislature

The HIPAA Breach Notification Rule came from the Health Information Technology for Economic and Clinical Health (HITECH) Act, which was passed on February 17, 2009. The HIPAA Breach Notification Rule took effect from August 24, 2009.

The Breach Notification Rule requires HIPAA-covered entities to submit notifications of breaches of protected health information to the Secretary of the Department of Health and Human Services within 60 days of the discovery of a breach if the breach involved 500 or more records. Smaller breaches must still be reported, no later than 60 days after the end of the year in which the breach was discovered. The Breach Notification Rule also requires notifications of a breach to be sent to affected patients within 60 days of the discovery of the breach.

The Omnibus Rule of HIPAA Passed into Legislature?

The HIPAA Omnibus Final Rule was issued on January 17, 2013. The HIPAA Omnibus Rule introduced several changes to the HIPAA Privacy, Security, and Breach Notification Rules.

One of the most important changes affected HIPAA business associates – individuals or entities that are contracted to HIPAA-covered entities to provide services that require access to PHI.

Since the passing of the HIPAA Omnibus Rule, business associates of HIPAA-covered entities, and their subcontractors, must implement safeguards to protect ePHI as required by the HIPAA Security Rule. Since the introduction of the Omnibus Rule, business associates of HIPAA-covered entities can be fined directly for HIPAA violations.

Another important update was clarification of “significant harm.” Prior to the introduction of the Omnibus Rule, many covered entities failed to report breaches as there was determined to have been no significant harm caused to patients as a result of the breach. After the Omnibus Rule, covered entities must be able to prove there was no significant harm if they decide not to report a breach.

Infographic Summary of Milestones in the History of HIPAA

In addition to the above major changes to HIPAA legislation, there have been numerous milestones in the history of HIPAA, which have been summarized in the infographic below. The infographic details legislation changes, clarifications of HIPAA Rules, major enforcement actions, and HIPAA audits – Click the image below to view the graphic in full size.

HIPAA History

The post In What Year Was HIPAA Passed into Legislature? appeared first on HIPAA Journal.

MongoDB and AWS Incorporate New Security Controls to Prevent Data Breaches

Posted by HIPAA Journal

Amazon has announced that new safeguards have been incorporated into its cloud server that will make it much harder for users to misconfigure their S3 buckets and accidentally leave their data unsecured.

While Amazon will sign a business associate agreement with HIPAA-covered entities, and has implemented appropriate controls to ensure data can be stored securely, but user errors can all too easily lead to data exposure and breaches. Those breaches show that even HIPAA-compliant cloud services have potential to leak data.

This year has seen many organizations accidentally leave their S3 data exposed online, including several healthcare organizations. Two such breaches were reported by Accenture and Patient Home Monitoring. Accenture was using four unsecured cloud-based storage servers that stored more than 137 GB of data including 40,000 plain-text passwords. The Patient Home Monitoring AWS S3 misconfiguration resulted in the exposure of 150,000 patients’ PHI.

In response to multiple breaches, Amazon has announced that new safeguards have been implemented to alert users to exposed data. While there are reasons why organizations would want their Amazon S3 buckets accessible over the Internet without the need for authentication, in most cases stored data should be protected.

To reduce the potential for data exposure, Amazon is implementing a warning system that will alert users when authentication controls are not active. A bright orange button will now appear throughout the AWS console to alert users when their S3 buckets are accessible without the need for authentication. Administrators will be able to control the privacy settings of each S3 bucket using an access control list, and publicly available buckets will be clearly displayed. Daily and weekly reports will also highlight which buckets are secure, and which are accessible by the public.

MongoDB Update Makes Databases Secure by Default

In addition to the data breaches resulting from exposed Amazon S3 buckets, many organizations have reported breaches involving unsecured MongoDB databases this year. Worldwide, more than 27,000 organizations had their databases accessed, data stolen, and their databases deleted. The attackers issued demands for payment to return the stolen data.

While MongoDB incorporates all the necessary safeguards to prevent unauthorized accessing of databases, those safeguards must be activated. Many organizations failed to realize that the default configuration was not secure.

MongoDB has responded to the breaches and has taken the decision to implement default security controls for the new version of the database platform, which is scheduled to be released next month. MongoDB 3.6 will only have localhost enabled by default. Users that require their databases to be accessible over the internet will be required to switch on that feature. Doing so will make the databases accessible by anyone, so to restrict access, authentication controls will need to be manually switched on. The new secure default configuration will make it harder for data to be accidentally exposed online.

The post MongoDB and AWS Incorporate New Security Controls to Prevent Data Breaches appeared first on HIPAA Journal.

2017 Data Breach Report Reveals 305% Annual Rise in Breached Records

Posted by HIPAA Journal

A 2017 data breach report from Risk Based Security (RBS), a provider of real time information and risk analysis tools, has revealed there has been a 305% increase in the number of records exposed in data breaches in the past year.

For its latest breach report, RBS analyzed breach reports from the first 9 months of 2017. RBS explained in a recent blog post, 2017 has been “yet another ‘worst year ever’ for data breaches.”

In Q3, 2017, there were 1,465 data breaches reported, bringing the total number of publicly disclosed data breaches up to 3,833 incidents for the year. So far in 2017, more than 7 billion records have been exposed or stolen.

RBS reports there has been a steady rise in publicly disclosed data breaches since the end of May, with September the worst month of the year to date. More than 600 data breaches were disclosed in September.

Over the past five years there has been a steady rise in reported data breaches, increasing from 1,966 data breaches in 2013 to 3,833 in 2017. Year on year, the number of reported data breaches has increased by 18.2%.

The severity of data breaches has also increased. In 2016, 2.3 billion records were exposed in the first 9 months of the year. In 2017, the figure jumped to 7.09 billion.

The majority of the exposed records in 2017 came from five breaches, which exposed approximately 78.5% of all the records exposed so far in 2017.

The breach at DU Caller exposed 2,000,000,000 records; the River City Media breach saw 1,374,159,612 records exposed; An unnamed web breach exposed 711,000,000 records; and the EmailCar breach saw 267,000,000 records exposed.

Those five breaches made the top ten list of the worst data breaches of all time, and were ranked as the 2nd, 3rd,  4th, and 9th worst data breaches of all time. With the exception of one breach in 2014, all of the top ten data breaches of all time have been discovered in 2016 (4) and 2017 (5).

While the above five breaches involved the most records, the most severe data breach of the year to date was the breach at Equifax, which exposed the records of 145,500,000 individuals. The breach only ranks in 18th place in the list of the worst data breaches of all time, but RBS rates it as the most severe data breach of 2017 due to the nature of data obtained by the hackers.

The main cause of 2017 data breaches, by some distance, was hacking. 1,997 data breaches were due to hacks, 433 breaches were due to skimming, phishing was behind 290 breaches, viruses caused 256 breaches, and 206 breaches were due to web attacks.

Web attacks may have come in at fifth place in terms of the number of breaches, but the attacks resulted in the greatest number of exposed records – 68.5% of the total. Hacking accounted for 30.9% of exposed records.

The business sector has been worst affected by data breaches in 2017, accounting for 68.5% of the total, followed by ‘unknown’ on 12.6%. Medical data breaches were in third place accounting for 8.5% of the total.

RBS reports that there have been 69 data breaches reported in 2017 that involved the exposure or more than a million records.

The Risk Based Security 2017 Data Breach Report can be viewed here.

The post 2017 Data Breach Report Reveals 305% Annual Rise in Breached Records appeared first on HIPAA Journal.

Healthcare Data Breach Statistics Questioned

Posted by HIPAA Journal

Large healthcare providers experience more data breaches than smaller healthcare providers, at least that is what the healthcare data breach statistics from a spring Johns Hopkins University’s Care School of Business report show.

For the study, the researchers used breach reports submitted to the Department of Health and Human Services’ Office for Civil Rights. HIPAA-covered entities are required to submit breach reports to OCR, and under HITECT Act requirements, OCR publishes the breaches that impact more than 500 individuals.

The Ge Bai, PhD., led study, which was published in the journal JAMA Internal Medicine, indicates between 2009 and 2016, 216 hospitals had reported a data breach and 15% of hospitals reported more than one breach. The analysis of the breach reports suggest teaching hospitals are more likely to suffer data breaches – a third of breached hospitals were major teaching centers. The study also suggested larger hospitals were more likely to experience data breaches.

Now, a team of doctors from Vanderbilt University, in Nashville, TN have called the data breach statistics details in the Johns Hopkins study into question, pointing out a number of potential errors could have crept in due to the nature of the data available. Daniel Fabbri, PhD wrote to JAMA Internal Medicine pointing out that the claims made by Bai and his team may not be correct.

“Such a broad claim neglects inherent biases in data collection and reporting practices,” wrote Fabbri in the letter.  He explained that the data set available to the researchers only includes data breaches of 500 or more individuals, not smaller breaches which are not published. Larger hospitals have more patients, and could therefore be more likely to reach the 500-patient threshold for inclusion in the data set.

The researchers also argue, that in order for a breach to be reported, it must first be detected. Larger cybersecurity budgets mean more cybersecurity staff and better technology. Breaches are more likely to be detected by larger hospitals, whereas a breach at a smaller healthcare organization may remain undetected for longer. Regardless of size, hospitals are likely to be able to detect lost or stolen devices, but detecting insider breaches is likely to take much longer for smaller hospitals that lack technology and the resources to conduct internal audits of data access logs.

They also explain that there may be issues with the quality of the data. Just because it is a requirement of HIPAA to report data breaches, that does not necessarily mean that healthcare organizations will.

The Vanderbilt team explain “This nonuniform treatment of breaches based on size, instead of impact, offense, or rate-per-employee biases the results and can negatively impact perceived patient privacy and security risks. Small-scale violations are just as important and can be even more impactful.”

Bai and her team have responded to the letter and have agreed that there are issues with the 500-individual threshold for reporting, but explain that larger hospitals have more PHI and “combined with teaching hospitals’ need for broad data access, this creates significant targets for cyber criminals, compared with smaller institutions that might be the main reason for their relatively high risks of data breaches.”

It stands to reason that large healthcare organizations, with larger volumes of health data are an attractive target for cybercriminals. Large quantities of data mean a big payday for hackers. However, that does not necessarily mean they are targeted by cybercriminals much more than smaller organizations. Fort Knox holds significant gold reserves, but most bank robbers attack easier targets. TheDarkOverlord, a hacking group well known for targeting the healthcare industry, tends to attack smaller healthcare organizations – They are typically easier to attack as they do not have the resources or staff of their larger counterparts to devote to cybersecurity.

What is clear, is that based on the data available, obtaining meaningful healthcare data breach statistics is problematic. As the Vanderbilt researchers explained, it is difficult to conduct meaningful research based on the data set available, especially research that could be used as a basis to change hospital privacy practices.

The post Healthcare Data Breach Statistics Questioned appeared first on HIPAA Journal.

What is a Limited Data Set Under HIPAA?

Posted by HIPAA Journal

A limited data set under HIPAA is a set of identifiable healthcare information that the HIPAA Privacy Rule permits covered entities to share with certain entities for research purposes, public health activities, and healthcare operations without obtaining prior authorization from patients, if certain conditions are met.

In contrast to de-identified protected health information, which is no longer classed as PHI under HIPAA Rules, a limited data set under HIPAA is still identifiable protected information. Therefore it is still subject to HIPAA Privacy Rule regulations.

A HIPAA limited data set can only be shared with entities that have signed a data use agreement with the covered entity. The data use agreement allows the covered entity to obtain satisfactory assurances that the PHI will only be used for specific purposes, that the PHI will not be disclosed by the entity with which it is shared, and that the requirements of the HIPAA Privacy Rule will be followed.

The data use agreement, which must be accepted prior to the limited data set being shared, should outline the following:

  • Allowable uses and disclosures
  • Approved recipients and users of the data
  • An agreement that the data will not be used to contact individuals or re-identify them
  • Require safeguards to be implemented to ensure the confidentiality of data and prevent impermissible uses and disclosures
  • State the discovery of impermissible uses and disclosures must be reported back to the covered entity
  • State that any subcontractors who are required to access or use the data also enter into a data use agreement and agree to comply with its requirements.

In all cases, the HIPAA minimum necessary standard applies, and information in the data set must be limited to only the information necessary to perform the purpose for which it is disclosed.

What Information Must be Removed From a Limited Data Set Under HIPAA?

A limited data set under HIPAA cannot contain any of the following identifiers:

  • Names – including those of relatives, employers, and household members
  • Street addresses or postal address information with the exception of town/city, state, and zip code
  • Phone/Fax numbers
  • E-mail addresses
  • Social Security numbers
  • Medical record numbers
  • Health plan beneficiary numbers
  • Other account numbers
  • Certificate and license numbers
  • Vehicle identifiers and serial numbers, including license plate numbers
  • Device identifiers and serial numbers
  • URLs and IP addresses
  • Biometric identifiers such as fingerprints, retinal scans and voice prints
  • Full face photos and comparable images

Limited Data Sets: FAQs

What are the differences between a limited data set under HIPAA and de-identified protected health information?

The differences are that the content of a limited data set is still subject to Privacy Rule standards for uses and disclosures and it is necessary for a Covered Entity to enter into a data use agreement with the recipient of the limited data set prior to sharing the information with the recipient. De-identified protected health information has neither of these requirements because de-identified protected health information contains no individually identifiable health information.

What individually identifiable information can remain in a limited data set?

The list of identifiers in a limited data set can include the town, city, or state of the individual, their gender, and dates relating to the individual. Additionally, there is no requirement to remove “any other unique identifying number, characteristic, or code” as there is for de-identifying protected health information – notwithstanding that the list of identifiers for de-identifying protected health information is very out-of-date.

What is the purpose of a limited data set if most identifiers are removed?

As mentioned in the article, a limited data set under HIPAA can be used for research purposes, public health activities, and healthcare operations. Consequently, the set could be used to (for example) determine how many minors were treated in ED, establish the proportion of male vs female patients in geriatric care, or calculate what resources might be required to cope with a patient surge during a pandemic or other emergency.

Is the information left in a limited data set still protected health information?

Yes, as a limited data set includes information relating to an individual´s past, present, or future health conditions, treatments for the conditions, and payments for the treatments AND information that could be used to identify the individual, the information left in a limited data set meets the definition of protected health information in §160.103 of the Administrative Simplification Regulations.

What happens if the recipient of a limited data set misuses the information or impermissibly discloses the information?

As soon as the Covered Entity learns of any misuse or impermissible disclosure, it must conduct a risk assessment to determine whether the misuse/impermissible disclosure constitutes a notifiable data breach under the Breach Notification Rule. If so, the breach must be reported to the affected individual(s) and the HHS´ Office for Civil Rights.

The post What is a Limited Data Set Under HIPAA? appeared first on HIPAA Journal.

How Can Healthcare Organizations Prevent Phishing Attacks?

Posted by HIPAA Journal

The threat from phishing is greater than ever before. Healthcare organizations must now invest heavily in phishing defenses to counter the threat and prevent phishing attacks and the theft of credentials and protected health information.

Phishing on an Industrial Scale

More phishing websites are being developed than ever before. The scale of the problem was highlighted in the Q3 Quarterly Threat Trends Report from Webroot. In December 2016, Webroot reported there were more than 13,000 new phishing websites created every day – Around 390,000 new phishing webpages every month. By Q3, 2017, that figure had risen to more than 46,000 new phishing webpages a day – around 1,385,000 per month. The report indicated 63% of companies surveyed had experienced a phishing related security incident in the past two years.

Phishing webpages need to be created on that scale as they are now detected much more rapidly and added to blacklists. Phishing websites now typically remain active for between 4-6 hours, although that short time frame is sufficient for each site to capture many users’ credentials. Many of those websites also have an SSL certificate, so they appear to users to be secure websites. A website starting with HTTPS is no guarantee that it is not being used for phishing.

Study Provides Insight into Phishing Tactics

While phishers often use their own domains to phish for credentials, a recent report from Duo Security showed legitimate websites are increasingly being compromised and loaded with phishing kits. The study identified more than 3,200 unique fishing kits spread across 66,000 URLs. These phishing kits are being traded on underground marketplaces and sold to accomplished phishers and wannabe cybercriminals. 16% of those URLs were on HTTPS websites.

Duo Security notes that persistence is maintained by creating a .htaccess file that blocks the IP addresses of threat intelligence gathering firms to prevent detection. The Webroot report also highlighted an increase in the use of benign domains for phishing.

The phishing kits are typically loaded into the wp-content, wp-includes, and wp-admin paths of WordPress sites, and the signin, images, js, home, myaccount, and css folders on other sites. Organizations should monitor for file changes in those directories to ensure their sites are not hijacked by phishers. Strong passwords should also be used along with non-standard usernames and rate limiting on login attempts to improve resilience against brute force attacks.

How to Prevent Phishing Attacks

Unfortunately, there is no single solution that will allow organizations to prevent phishing attacks, although it is possible to reduce risk to an acceptable level. In the healthcare industry, phishing defenses are a requirement of HIPAA and steps must be taken to reduce risk to a reasonable and acceptable level. The failure to address the risk from phishing can result in financial penalties for noncompliance.

Defenses should include a combination of technological solutions to prevent the delivery of phishing emails and to block access to phishing URLs. Employees must also receive regular training to help them identify phishing emails.

As OCR pointed out in its July Cybersecurity newsletter, HIPAA (45 C.F.R. § 164.308(a)(5)(i)) requires organizations to provide regular security awareness training to employees to help prevent phishing attacks. OCR explained that “An organization’s training program should be an ongoing, evolving process and flexible enough to educate workforce members on new cybersecurity threats and how to respond to them.”

Due to the increased use of HTTPS, it is no longer sufficient for users to check that the site is secure to avoid phishing scams. While a site starting with HTTPS does give an indication that the site is secure, it is important that end users do not automatically trust those websites and let their guard down. Just because a website has an SSL certificate it does not mean it can be trusted. Users should also be told to pay particular attention to the domain name to make sure that they are visiting their intended website, and always to exercise caution before deciding to disclose any login credentials.

Even with security awareness training, employees cannot be expected to recognize all phishing attempts. Phishers are developing increasingly sophisticated phishing emails that are barely distinguishable from genuine emails. Websites are harder to identify as malicious, emails are well written and convincing, and corporate branding and logos are often used to fool end users. Technological solutions are therefore required to reduce the number of emails that reach inboxes, and to prevent users from visiting malicious links when they do.

A spam filtering solution is essential for reducing the volume of emails that are delivered. Organizations should also consider using a web filtering solution that can block access to known phishing websites. The most effective real-time URL filtering solutions do not rely on blacklists and banned IP addresses to block attacks. Blacklists still have their uses and can prevent phishing attacks, but phishing websites are typically only active for a few hours – Before the sites are identified as malicious and added to blacklists. A range of additional detection mechanisms are required to block phishing websites. Due to the increase in phishing sites on secure websites, web filters should be able to decrypt, scan, and re-encrypt web traffic.

Healthcare organizations should also sign up to threat intelligence services to receive alerts about industry-specific attacks. To avoid being swamped with irrelevant threat information, services should be tailored to ensure only treat information relevant to each organization is received.

The post How Can Healthcare Organizations Prevent Phishing Attacks? appeared first on HIPAA Journal.

Can A Patient Sue for A HIPAA Violation?

Posted by HIPAA Journal

Yes, a patient can sue for a HIPAA violation and there are an increasing number of class action suits for protected health information data breaches, although not under the provisions of the HIPAA law. There is no private cause of action in HIPAA, so it is not possible for a patient to directly sue for a HIPAA violation under the HIPAA law. Even if HIPAA Rules have clearly been violated by a healthcare provider, and harm has been suffered as a direct result, it is not possible for patients to seek damages, at least not for the violation of HIPAA Laws. So, if it is not possible for a patient to directly sue for a HIPAA violation, does that mean legal action cannot be taken against a covered entity when HIPAA has clearly been violated? While HIPAA does not have a private cause of action, it is possible for patients to take legal action against healthcare providers and obtain damages for violations of state laws.

In some states, it is possible to file a lawsuit against a HIPAA covered entity on the grounds of negligence or for a breach of an implied contract, such as if a covered entity has failed to protect medical records. In such cases, it will be necessary to prove that damage or harm has been caused as a result of negligence or the theft of unsecured personal information.

Taking legal action against a covered entity can be expensive and there is no guarantee of success. Patients should therefore be clear about their aims and what they hope to achieve by taking legal action. An alternative course of action may help them to achieve the same aim.

Filing Complaints for HIPAA Violations

If HIPAA Rules are believed to have been violated, patients can file complaints with the federal government and in most cases complaints are investigated. Action may be taken against the covered entity if the compliant is substantiated and it is established that HIPAA Rules have been violated. The complaint should be filed with the Department of Health and Human Services’ Office for Civil Rights (OCR).

While complaints can be filed anonymously, OCR will not investigate any complaints against a covered entity unless the complainant is named and contact information is provided.

A complaint should be filed before legal action is taken against the covered entity under state laws. Complaints must be filed within 180 days of the discovery of the violation, although in limited cases, an extension may be granted.

Complaints can also be filed with state attorneys general, who also have the authority to pursue cases against HIPAA-covered entities for HIPAA violations.

The actions taken against the covered entity will depend on several factors, including the nature of the violation, the severity of the violation, the number of individuals impacted, and whether there have been repeat violations of HIPAA Rules.

The penalties for HIPAA violations are detailed here, although many complaints are resolved through voluntary compliance, by issuing guidance, or if an organization agrees to take corrective action to resolve the HIPAA issues that led to the complaint. Complaints may also be referred to the Department of Justice to pursue cases if there has been a criminal violation of HIPAA Rules.

Complaints about individuals can also be filed with professional boards such as the Board of Medicine and the Board of Nursing.

How to File a Lawsuit for a HIPAA Violation

If you have been informed that your protected health information has been exposed as a result of a healthcare data breach, or you believe your PHI has been stolen from a specific healthcare organization, you may be able to take legal action against the breached entity to recover damages for any harm or losses suffered as a result of the breach.

The first step to take is to submit a complaint about the violation to the HHS’ Office for Civil Rights. This can be done in writing or via the OCR website. If filing a complaint in writing, you should use the official OCR complaint form and should keep a copy to provide to your legal representative.

You will then need to contact an attorney to take legal action against a HIPAA covered entity. You can find attorneys through your state or local bar association. Try to find an attorney or law firm well versed in HIPAA regulations for the greatest chance of success and contact multiple law firms and speak with several attorneys before making your choice.

There will no doubt be many other individuals who are in the same boat, some of whom may have already taken legal action. Joining an existing class action lawsuit is an option. The more individuals involved, the stronger the case is likely to be.

Many class action lawsuits have been filed on behalf of data breach victims that have yet to experience harm due to the exposure or theft of their data. The plaintiffs claim for damages for future harm as a result of their data being stolen. However, without evidence of actual harm, the chances of success will be greatly reduced.

Can a Patient Sue for a HIPAA Violation? FAQs

What kind of lawyer deals with HIPAA violations?

Most lawyers will be prepared to offer advice about whether you have a claim for a HIPAA violation; and, if the violation occurred with the previous 180 days, may pursue a civil claim on your behalf against a Covered Entity or Business Associate. Often the lawyer´s willingness to take on a claim will depend on the nature of the violation, the nature of harm you suffered, and the state laws that apply in your location.

What happens after a HIPAA complaint is filed?

This depends on who you make the complaint to. If you complain directly to the organization that violated your HIPAA rights, the complaint will be dealt with internally (unless it involves a breach of unsecured PHI, in which case the organization is required by law to notify HHS´ Office for Civil Rights.

If you complain to a state Attorney General, the Office of the Attorney General may investigate the organization directly on your behalf or escalate your complaint to HHS´ Office for Civil. If the complaint is escalated – or you complain directly to the Office for Civil Rights – your compliant will be acknowledged and sent for review.

If the review confirms a HIPAA violation, the organization will be contacted to obtain their “side of the story”. Depending on how the organization responds, the Office for Civil Rights may initiate an investigation or reject your compliant. You will be informed of the decision and any subsequent outcome of an investigation.

Has a patient ever successfully sued for a HIPAA violation?

No. However, the HIPAA Privacy Standards have been used in court cases as a benchmark of the level of privacy an individual can reasonably expect. One of the most frequently-quoted cases in this respect is Byrne versus the Avery Center for Obstetrics and Gynecology. This case was originally denied when the plaintiff pursued compensation for a violation of HIPAA, but the decision was reversed on appeal when the claim was changed to a violation in the duty of confidentiality.

Have there ever been successful class actions for a HIPAA violation?

There have been several settled class actions involving HIPAA Covered Entities who have failed to adequately protect personal information (note: not for violating HIPAA). Furthermore, class actions are frequently settled without an admission of liability (as in Jessie Seranno et al. v. Inmediata Corp.), so it would be incorrect to classify the class actions as “successful”.

How can I find out if my state has a privacy law I can use to claim for a HIPAA violation?

The International Association of Privacy Professionals maintains a web page tracking privacy legislation by state. It is important to note that many of the privacy laws listed on the web page are still to be passed or enacted, and some may not contain provisions that could support a claim for a HIPAA violation. To establish whether you have a claim for a HIPAA violation under your state´s consumer rights legislation, you should speak with an attorney.

I have received a letter stating my health data has been breached. What should I do?

Your response to the breach should be appropriate to nature of the data disclosed. The nature of the data exposed should be explained to you in the letter as well as advice on the measures you should take to protect yourself from fraud and theft. The letter should also contain contact information to find out more about the breach. In several cases, healthcare organizations have provided free credit monitoring services, and it may be in your best interests to find out if these are available to you.

What happens after a HIPAA complaint is filed?

This depends on who the complaint is made to, the nature of the violation, and whether it involves a criminal motive. Complaints made by patients directly to their healthcare provider are usually dealt with internally unless they involve an impermissible disclosure of unsecured PHI – in which case the healthcare provider will escalate it to HHS´ Office for Civil Rights under the Breach Notification Rule.

When a complaint is escalated – or when a complaint is made directly to HHS´ Office for Civil Rights – the complaint is reviewed to see if it is justifiable and, if so, if it can be resolved via technical assistance. If the resolution of the complaint requires more than technical assistance, HHS´ Office for Civil Rights will conduct an investigation and potentially impose a correct action plan or fine.

Complaints can also be made to state attorneys general, who work with HHS´ Office for Civil Rights to resolve the violation. However, if a violation potentially involves a criminal motive, the Office for Civil Rights will refer the complaint to the Department of Justice for investigation. In these cases, the person making the complaint may be required to provide evidence for the investigation to proceed.

The post Can A Patient Sue for A HIPAA Violation? appeared first on HIPAA Journal.