Healthcare Data Security

Is Hotmail HIPAA Compliant?

Posted by HIPAA Journal

Many healthcare organizations are unsure whether Hotmail is HIPAA compliant and whether sending protected health information via a Hotmail account can be considered a HIPAA compliant method of communication. In this post we answer the question is Hotmail HIPAA compliant, and whether the webmail service can be used to send PHI.

Hotmail is a free webmail service from Microsoft that has been around since 1996. Hotmail has now been replaced with Outlook.com. In this post we will determine if Hotmail is HIPAA-complaint, but the same will apply to Outlook.com. For the purposes of this article, Hotmail and Outlook.com will be considered one and the same.

HIPAA, Email and Encryption

There is a common misconception that all email is HIPAA compliant. In order for any email service to be HIPAA compliant, it must incorporate security controls to prevent unauthorized individuals from gaining access to accounts and for any information sent via the email service to be secured to prevent messages from being intercepted. There must be access controls, integrity controls, and transmission security controls in place – See 45 CFR § 164.312(a), 45 CFR § 164.312(c)(1), and 45 CFR § 164.312(e)(1).

All email accounts are secured with a password, but not all email accounts securely send messages. If messages are not encrypted in transit, they could easily be intercepted and read by unauthorized individuals.

In order to be HIPAA-compliant, email messages should be encrypted in transit if they are sent outside the protection of an organization’s firewall. Encryption is not required if messages are sent internally and the messages are sent via a secure internal email server that sits behind a firewall.

Is Hotmail HIPAA Compliant?

Since Hotmail is a webmail service, it lies outside the protection of a firewall. In order to be HIPAA compliant, Hotmail would need to incorporate security controls to prevent messages from being intercepted. Hotmail uses HTTPS, so any information transferred between the browser and the Hotmail site is encrypted, and messages are also secured in transit.

However, while Microsoft says it does not scan the content of messages and will not sell that information to third-parties such as advertisers, Microsoft does have access to messages. Further, in order for an email service such as Hotmail to be HIPAA compliant, it would be necessary to first obtain a HIPAA-compliant business associate agreement with the email service provider.

Microsoft does offer business associate agreements for Office 365, but Office 365 does not include Hotmail or Outlook.com email accounts, which are free consumer email services. Microsoft does not offer any business associate agreements for its free consumer services.

Therefore, the answer to the question is Hotmail HIPAA compliant is no. Without a signed business associate agreement, Hotmail email accounts should not be used. The same applies to Gmail accounts and most other free consumer email services.

Can You Send PHI to a Patient’s Hotmail Account?

If your email system is secure and HIPAA-compliant, is it possible to send PHI to patients if they have a Hotmail account?

HIPAA does permit healthcare organizations to send PHI to patients via email, regardless of the email service provider the patient uses. However, it is not permitted to send emails to patients without first obtaining their consent to do so. When obtaining consent, you should communicate to patients that the sending of PHI via email is not secure and that their information could potentially be intercepted and viewed by individuals who are unauthorized to view that information.

If patients are informed of the risks, and confirm that they accept those risks, PHI can be sent via email, even if they have a Hotmail or Outlook.com email account. Covered entities should document that consent has been obtained and patients have opted in to receive information via email, including how you authenticated their identity.

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$2.3 Million 21st Century Oncology HIPAA Settlement Agreed with OCR

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A 21st Century Oncology HIPAA settlement has been agreed with the Department of Health and Human Services’ Office for Civil Rights (OCR) to resolve potential HIPAA violations discovered during the investigation of a 2015 breach of 2.2 million patients’ PHI.

The breach in question was discovered by the Federal Bureau of Investigation (FBI) in 2015. The FBI informed 21st Century Oncology on November 13 and December 13, 2015, that an unauthorized individual accessed and stole information from one of its patient databases.

21st Century Oncology conducted an investigation with the assistance of a third-party computer forensics company and discovered the network SQL database was potentially first accessed on October 3, 2015. The database was accessed through Remote Desktop Protocol from an Exchange Server within 21st Century Oncology’s network. The database contained the protected health information of 2,213,597 individuals.

As occurs after all data breaches that impact more than 500 individuals, OCR conducted an investigation into the 21st Century Oncology data breach. That investigation uncovered multiple potential violations of HIPAA Rules.

OCR determined that 21st Century Oncology failed to conduct a comprehensive, organization-wide risk assessment to determine the potential risks to the confidentiality, integrity, and availability of electronic protected health information, as required by 45 C.F.R. § 164.308(a)(1)(ii)(A).

21st Century Oncology was also determined to have failed to implement sufficient measures to reduce risks to an appropriate and acceptable level to comply with 45 C.F.R. § 164.306(A).

21st Century Oncology also failed to implement procedures to regularly review logs of system activity, including audit logs, access reports, and security incident tracking reports, as required by 45 C.F.R. §164.308(a)(1)(ii)(D).

The breach resulted in the impermissible disclosure of the protected health information of 2,213,597 patients.

Further, protected health information of patients was disclosed to business associates without first entering into a HIPAA-compliant business associate agreement and obtaining satisfactory assurances that HIPAA requirements would be followed.

To resolve those potential HIPAA violations, 21st Century Oncology agreed to pay OCR $2.3 million. In addition to the financial settlement, 21st Century Oncology has agreed to adopt a comprehensive corrective action plan (CAP) to bring its policies and procedures up to the standards demanded by HIPAA.

Under the CAP, 21st Century Oncology must appoint a compliance officer, revise its policies and procedures with respect to system activity reviews, access establishment, modification and termination, conduct an organization-wide risk assessment, develop internal policies and procedures for reporting violations of HIPAA Rules, and train staff on new policies.

21st Century Oncology is also required to engage a qualified, objective, and independent assessor to review compliance with the CAP.

Separate $26 Million Settlement Resolves Meaningful Use, Stark Law, and False Claims Act Violations

In addition to the OCR settlement to resolve potential HIPAA violations, 21st Century Oncology has also agreed to a $26 million settlement with the Department of Justice to resolve allegations that it submitted false or inflated Meaningful Use attestations in order to receive incentive payments. 21st Century Oncology self-reported that employees falsely submitted information relating to the use of EHRs to avoid downward payment adjustments. Fabricated reports were also submitted, and the logos of EHR vendors were superimposed on reports to make them appear genuine.

The settlement also resolves allegations that the False Claims Act was violated by submitting or enabling the submission of claims that involved kickbacks for physician referrals, and also violations of the Stark Law, which covers physician self-referrals.

According to the Department of Justice, “The Stark Law prohibits an entity from submitting claims to Medicare for designated health services performed pursuant to referrals from physicians with whom the entity has a financial relationship unless certain designated exceptions apply.”

“We appreciate that 21st Century Oncology self-reported a major fraud affecting Medicare, and we are also pleased that the company has agreed to accept financial responsibility for past compliance failures,” said Middle District of Florida Acting U.S. Attorney Stephen Muldrow.

In addition to paying the settlement amount, 21st Century Oncology has entered into a 5-year Corporate Integrity Agreement with the HHS’ Office of Inspector General (OIG).

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November 2017 Healthcare Data Breach Report

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In November 2017, the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) received 21 reports of healthcare data breaches that impacted more than 500 individuals; the second consecutive month when reported breaches have fallen.

healthcare data breaches by month (November 2017)

While the number of breaches was down month on month, the number of individuals impacted by healthcare data breaches increased from 71,377 to 107,143.

breached healthcare records November 2017

Main Causes of November 2017 Healthcare Data Breaches

In November there was an even spread between hacking/IT incidents, unauthorized disclosures, and theft/loss of paper records or devices containing ePHI, with six breaches each. There were also three breaches reported involving the improper disposal of PHI and ePHI. Two of those incidents involved paper records and one involved a portable electronic device.

The two largest data breaches reported in November – the 32,000-record breach at Pulmonary Specialists of Louisville and the 16,474-record breach at Hackensack Sleep and Pulmonary Center – were both hacking/IT incidents. The former involved an unauthorized individual potentially gaining access to electronic medical records, while the latter was a ransomware attack.

Seven of the 21 breaches reported in November impacted more than 5,000 individuals. The mean breach size was 5,102 records. The median breach size was 1,551 records.

 

causes of healthcare data breaches November 2017

records exposed by breach type

Location of Exposed and Stolen Protected Health Information

The OCR breach reports show the importance of implementing physical safeguards to ensure the confidentiality of paper records. In November, one third of reported data breaches (7 incidents) involved paper/films. Last month there were five reported incidents involving paper records.

A recent Accenture/HIMSS Analytics survey revealed email was the most common vector in cyberattacks on healthcare organizations. That was the case in October when email was the common location of breached data. In November, email was the second most common location of breached PHI behind paper films, with four email-related breaches reported.  There was an even spread between all other locations of breached PHI.

Location of PHI in November 2017 healthcare data breaches

 

November 2017 Healthcare Data Breaches by Covered Entity Type

November 2017 saw 19 data breaches reported by healthcare providers and two breaches affecting health plans. The breach reports indicate no business associates of covered entities were involved in any incidents reported in November.

 November 2017 Healthcare Data Breaches by Covered Entity Type

 

Largest Healthcare Data Breaches of November 2017

 

Breached Entity Entity Type Breach Type Individuals Affected
Pulmonary Specialists of Louisville, PSC Healthcare Provider Hacking/IT Incident 32,000
Hackensack Sleep and Pulmonary Center Healthcare Provider Hacking/IT Incident 16,474
Shop-Rite Supermarkets, Incorporated Healthcare Provider Improper Disposal 12,172
The Medical College of Wisconsin, Inc. Healthcare Provider Hacking/IT Incident 9,500
Valley Family Medicine Healthcare Provider Unauthorized Access/Disclosure 8,450
Sports Medicine & Rehabilitation Therapy, Inc. Healthcare Provider Hacking/IT Incident 7,000
Humana Inc Health Plan Unauthorized Access/Disclosure 5,764
Alere Toxicology Healthcare Provider Unauthorized Access/Disclosure 2,146
Family & Cosmetic Dentistry of the Rockies Healthcare Provider Improper Disposal 1,850
Aetna Inc. Health Plan Unauthorized Access/Disclosure 1,600

 

November 2017 Healthcare Data Breaches by State

The reported breaches in November were spread across 15 states. The states worst affected were Kentucky and Massachusetts with 3 breaches apiece, followed by Colorado and New Jersey each with 2 breaches. One breach was reported by healthcare organizations based in Alabama, California, Connecticut, Florida, Indiana, New York, Pennsylvania, Texas, Virginia, Washington, and Wisconsin.

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Noncompliance with HIPAA Costs Healthcare Organizations Dearly

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Noncompliance with HIPAA can carry a significant cost for healthcare organizations, yet even though the penalties for HIPAA violations can be considerable, many healthcare organizations have substandard compliance programs and are violating multiple aspects of HIPAA Rules.

The Department of Health and Human Services’ Office for Civil Rights (OCR) commenced the much delayed second phase of HIPAA compliance audits last year with a round of desk audits, first on healthcare organizations and secondly on business associates of covered entities.

Those desk audits revealed many healthcare organizations are either struggling with HIPAA compliance, or are simply not doing enough to ensure HIPAA Rules are followed.

The preliminary results of the desk audits, released by OCR in September, showed healthcare organizations’ compliance efforts were largely inadequate. 94% of organizations had inadequate risk management plans, 89% were rated as inadequate on patients’ right to access their PHI, and 83% had performed inadequate risk analyses. It would appear that for many healthcare organizations, little has changed since the first phase of compliance audits were conducted in 2011/2012. Noncompliance with HIPAA is still widespread.

A few years ago, the risk of the discovery of a HIPAA violation was relatively low. Even when HIPAA violations were discovered, OCR rarely issued financial penalties. Similarly, even though the HITECH Act permits state attorneys general to issue fines for HIPAA violations, relatively few have exercised that right.

Today, the risk of HIPAA violations being discovered is significantly higher. Patients are now much more knowledgeable about their rights under HIPAA, and OCR has made it easy for them to file complaints about suspected HIPAA violations. HIPAA complaints are investigated by OCR.

The rise in cyberattacks on healthcare organizations mean data breaches are now far more likely to occur. A recent study by HIMSS Analytics/Mimecast showed 78% of healthcare organizations have experienced a ransomware or malware attack in the past 12 months, while an Accenture/AMA report showed 83% of physicians have experienced a cyberattack.

OCR investigates all breaches of more than 500 records to determine whether HIPAA Rules are being followed. When a breach occurs, organizations’ HIPAA compliance programs will be scrutinized.

OCR has also stepped up enforcement of HIPAA Rules and financial penalties are far more common. Since January 1, 2016, there have been 20 settlements reached between OCR and HIPAA covered entities and their business associates, and two civil monetary penalties issued.

OCR has yet to state whether financial penalties will be pursued as a result of the HIPAA audits, but OCR is not expected to turn a blind eye to major HIPAA failures. Multiple violations of HIPAA Rules could well see financial penalties pursued.

The higher likelihood of a data breach occurring or a complaint being filed means noncompliance with HIPAA is likely to be discovered. But what are the costs of noncompliance with HIPAA? What are the incentives for ensuring all HIPAA Rules are followed?

The Cost of Noncompliance with HIPAA

The high cost of HIPAA noncompliance has been summarized in the infographic below:

 

The Cost of Noncompliance with HIPAA

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AMA Study Reveals 83% of Physicians Have Experienced a Cyberattack

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Following the HIMSS Analytics/Mimecast survey that revealed 78% of healthcare organizations have experienced a ransomware or malware attack in the past 12 months, comes a new report on healthcare cybersecurity from the American Medical Association (AMA) and Accenture.

The Accenture/AMA survey was conducted on 1,300 physicians across the United States and aimed to take the ‘physician’s pulse on cybersecurity.’ The survey confirmed that it is no longer a case of whether a cyberattack will be experienced, it is just a matter of when cyberattacks will occur and how frequently.

83% of physicians who took part in the survey said they had previously experienced a cyberattack. When asked about the nature of the cyberattacks, the most common type was phishing. 55% of physicians who had experienced a cyberattack said the incident involved phishing – A similar finding to the HIMSS Analytics survey which revealed email was the top attack vector in healthcare.

48% of physicians who experienced a cyberattack said computer viruses such as malware and ransomware were involved. Physicians at medium to large practices were twice as likely to experience those types of cyberattacks than those at small practices.

When cyberattacks occur, they can result in considerable downtime. 64% of physicians said they experienced up to 4 hours of downtime following an attack, while 29% of physicians at medium-sized practices experienced downtime of up to one day.

Given the frequency of cyberattacks and the difficulty physician practices have at preventing those attacks, it is not surprising that the threat of attack is a major cause of concern. 55% of physicians were very or extremely worried about further cyberattacks at their practice. 74% said they were most concerned that future attacks would disrupt clinical practices and the same percentage were concerned that cyberattacks would result in breaches of patients’ protected health information. 53% were concerned that cyberattacks would have an impact on patient safety.

Physicians are aware that HIPAA compliance is important for cybersecurity, but simply doing the minimum and ensuring HIPAA requirements are met is not sufficient to prevent attacks. 83% of physicians said a more holistic approach to prioritizing risks is required than simply complying with HIPAA.

Kaveh Safavi, head of Accenture’s global practice said “Physician practices should not rely on compliance alone to enhance their security profile. Keeping pace with the sophistication of cyberattacks demands that physicians strengthen their capabilities, build resilience and invest in new technologies to support a foundation of digital trust with patients.”

Interestingly, while 87% of physicians believed their practice was compliant with HIPAA Rules, two thirds of physicians still have basic questions about HIPAA, suggesting their compliance programs may not be quite as comprehensive as they believe.

While the sharing of ePHI can introduce new risks, 85% believed PHI sharing was important, and 2 in 3 physicians thought that more access to patient data could improve the care provided to patients.

“New research shows that most physicians think that securely exchanging electronic data is important to improve health care. More support from the government, technology and medical sectors would help physicians with a proactive cybersecurity defense to better ensure the availability, confidentially and integrity of health care data,” said AMA President David. O. Barbe.

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Email Top Attack Vector in Healthcare Cyberattacks

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A recent study conducted by HIMSS Analytics for email security firm Mimecast has revealed 78% of healthcare organizations have experienced a ransomware or malware attack in the past 12 months.

Far from ransomware or malware attacks being occasional events, many of the healthcare organizations that participated in the survey have experienced more than a dozen malware or ransomware attacks in the past year.

While there are several possible ways that ransomware and malware can be installed, healthcare providers rated email as the number one attack vector.

When asked to rank attack vectors, Email was rated as the most likely source of a data breach by 37% of respondents, with the second most likely source of a data breach being ‘other portable devices’, ranked as the main threat by 10% of organizations.

59% of organizations ranked email first, second, or third as the most likely attack vector. In second place was laptops, which were ranked 1, 2, or 3 by 44% of organizations.

Given the frequency of email based attacks this year, it is no surprise that healthcare organizations believe email-related security attacks will continue to cause problems, and that they are likely to increase or significantly increase in the future.

A recent study conducted by Malwarebytes showed ransomware attacks are already 62% more prevalent that 2016, and have occurred at almost 2,000 times the rate in 2015. The 2017 Verizon Data Breach Report suggests 72% of all malware used to target the healthcare industry is ransomware.

Those findings were backed up by the HIMSS Analytics survey. Ransomware was seen as the most serious threat by 83% of respondents. Malware was rated second, followed by spear phishing attacks and Business Email Compromise (BEC) attacks.

The importance of securing email is clear. Email is used to communicate protected health information by approximately 80% of healthcare organization. Email is also rated as an essential communication tool and is considered critical by 93% of respondents, while 43% said email was mission critical and that their organization could not tolerate email downtime.

It is understandable given the frequency of email-based attacks and the importance of email in healthcare that organizations have a high level of concern about cybersecurity and their ability to repel email-based attacks.

Resilience to ransomware and malware attacks was rated as the top initiative for building a cyber resilience strategy, while training employees to be more security aware is the second highest priority over the following 12 months. Securing email was third.

David Hood, Cyber Resilience Strategist for Healthcare at Mimecast said, “This survey clearly demonstrates that email is a mission-critical application for healthcare providers and that cyberthreats are real and growing – surprisingly, even more so than the threats to Electronic Medical Records (EMRs), laptops and other portable electronic devices. It’s encouraging that protecting the organization and training employees are top initiatives for next year, but the survey suggests the industry has work to do.”

Mimecast provided five suggestions on how healthcare organizations can reduce the risk of email-based threats:

  1. Train employees on the risks associated with email and provide real-time reminders rather than relying on an annual training session.
  2. Analyze all inbound email attachments and scan for malware and malware downloaders
  3. Implement a web filtering solution to check URLs when a user clicks, not just at the point emails enter the organization.
  4. Inspect outbound emails and check that protected health information is not being sent to individuals unauthorized to receive it, and also to check emails to determine whether email accounts may have been compromised.
  5. Finally, it is essential that data backups are regularly performed to ensure that in the event of a ransomware attack, healthcare organizations do not face data loss and are not forced to pay ransoms.

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2017 has seen a 62% Increase in Ransomware Attacks

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Reported ransomware attacks in 2017 are already up 62% year on year, according to a new report from anti-malware firm Malwarebytes, with a month of 2017 still to go.

Criminal gangs and opportunistic cybercriminals – termed the New Mafia by Malwarebytes – have embraced ransomware as a quick and easy way to make money and sabotage businesses. Since September 2015, there has been a 1988.6% increase in ransomware attacks and there is no sign that attacks will slow down, especially due to the ease at which attacks can be conducted using ransomware-as-a-service.

Malwarebytes notes that the true number of attacks is likely to be far higher. Many businesses attempt to conceal ransomware attacks due to the reputational damage that can be caused. Attacks are not reported and ransom demands are quietly paid to quickly regain access to data.

It is not only ransomware attacks that have increased. The average number of monthly cyberattacks on businesses have risen by 23% year over year, according to the report. That is on top of a 96% increase in cyberattacks on businesses the previous year.

In the United States, only 21% of surveyed businesses said they have experienced no cyberattacks in the past 12 months. Malwarebytes notes that many of those businesses could be unaware that attacks have taken place and that there could be considerable knowledge gaps within organizations.

In the report, Malwarebytes points out that there are considerable discrepancies between various surveys, citing on PwC report that indicated 74% of business stakeholders believed they had not experienced a cyberattack in the past year, while the Malwarebytes survey, which was conducted on IT managers, CIOs, and CISOs, suggests the number of companies that have escaped a cyberattack in the past 12 months is far lower. Cyberattacks are occurring, but they are not being communicated to the C-suite leading to an underestimation of the threat level.

Some businesses have been extensively targeted. 41% of businesses experienced between 1 and 5 attacks, 10% had between 6 and 10 attacks, 5% experienced between 11 and 20 attacks and 22% have had 20 or more cyberattacks in the past year.

Even though the threat of cyberattacks is now at an all time high, many businesses are underestimating the threat and are failing to implement sufficient defenses to prevent attacks. Awareness of cybercrime needs to improve, businesses must accurately assess the likelihood of an attack occurring, and the C-suite should be more involved to ensure sufficient funds are allocated to cybersecurity to mitigate the threat. Malwarebytes suggests cybercrime must be elevated from a tech issue to a business-critical consideration, considering the damage that these cyberattacks can cause.

By improving collective awareness of the threats, sharing knowledge rather than trying to conceal attacks, and being proactive and implementing robust defenses it is possible for businesses to fight back and make it much harder for cybercriminals.

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Is GoToMeeting HIPAA Compliant?

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Is GoToMeeting HIPAA complaint? Can GoToMeeting be used by HIPAA-covered entities and their business associates for communicating protected health information without violating HIPAA Rules?

GoToMeeting is an online meeting and video conferencing solution offered by LogMeIn. The service is one of many conferencing and desktop sharing solutions that can improve communication and collaboration, with many benefits for healthcare organizations.

In order for collaboration tools to be used by healthcare organizations that are required to comply with Health Insurance Portability and Accountability Act Rules, tools must a subject to a risk analysis and determined to meet the security standards demanded by HIPAA.

Fail to ensure that a particular service is HIPAA compliant and you could violate the privacy of patients, breach HIPAA Rules, and potentially have to cover a sizable financial penalty for non-compliance.

It should be pointed out that no software or communications platform can be truly HIPAA-compliant. Even if appropriate safeguards are incorporated to ensure the confidentiality, integrity, and availability of ePHI, it is still possible to use a ‘HIPAA-compliant’ service in a non-compliant manner. It is up to a HIPAA-covered entity or business associate to ensure that any software or communication platform is configured correctly, is used appropriately, that PHI is only shared or communicated to people authorized to receive the information, and that when information is disclosed, the minimum necessary standard applies.

How secure is GoToMeeting? Is GoToMeeting HIPAA compliant?

Is GoToMeeting HIPAA Compliant?

In order to consider GoToMeeting HIPAA compliant, technical safeguards would need to be incorporated to meet the requirements of the HIPAA Security Rule.

To protect data in transit, GoToMeeting employs full end-to-end data encryption. All transmitted data is protected using HMAC-SHA-1 message authentication codes, while chat, video, audio, and control data are protected in transit using AES 128-bit encryption. AES 128-bit encryption meets the current standards for encryption recommended by NIST.

Protecting data in transit is only one element of HIPAA compliance. If PHI is to be transmitted – via email, secure text messages, or conferencing solutions – there must be audit controls. An audit trail must be maintained allowing activity relating to PHI to be examined. GoToMeeting creates logs of connection and session activity, and access to reporting and management tools are available to account managers.

Controls must also be present that ensure only authorized individuals are able to gain access to the system. GoToMeeting is protected by unique meeting codes and includes the option of setting strong passwords. When meetings are set up they are not publicly listed, and meeting organizers have full control over who can join the meetings.

Each user that wishes to join a meeting must identify themselves using a unique email address and/or number along with a unique password, and users are automatically logged off after a period of inactivity, which can be set by the meeting organizer.

GoToMeeting also confirms on its website, “the technical security controls employed in the GoToMeeting service and associated host and client software meet or exceed HIPAA technical standards.”

While the technical safeguards meet HIPAA requirements, HIPAA-covered entities must also enter into a HIPAA-compliant business associate agreement with service providers prior to using a service for communicating PHI. GoToMeeting offers a business associate agreement which covers use of the service, meeting this regulatory requirement.

So, is GoToMeeting HIPAA-compliant? Provided HIPAA-covered entities and business associates enter into a BAA with GoToMeeting prior to using the service for communicating PHI, GoToMeeting can be used in a HIPAA-compliant manner.

However, as GoToMeeting explains, “Organizations should carefully review all configurable security features of GoToMeeting in the context of their specific environments, user population and policy requirements to determine which features should be enabled and how best to configure.”

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How to Make Your Email HIPAA Compliant

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Many healthcare organizations would like to be able to send protected health information via email, but how do you make your email HIPAA compliant? What must be done before electronic PHI (ePHI) can be sent via email to patients and other healthcare organizations?

How to Make Your Email HIPAA Compliant

Whether you need to make your email HIPAA compliant will depend on how you plan to use email with ePHI. If you will only ever send emails internally, it may not be necessary to make your email HIPAA compliant.

If your email network is behind a firewall, it is not necessary to encrypt your emails.  Encryption is only required when your emails are sent beyond your firewall. However, access controls to email accounts are required, as it is important to ensure that only authorized individuals can access email accounts that contain ePHI.

If you want to use email to send ePHI externally – beyond your firewall – you will need to make your email HIPAA-compliant.

There are many email service providers that offer an encrypted email service, but not all are HIPAA compliant and incorporate all of the necessary safeguards to meet the requirements of the HIPAA Privacy and Security Rules. To make your email HIPAA compliant there are several things to consider:

Ensure you have end-to-end encryption for email

Email is a quick and easy way to communicate electronically, but it is not necessarily secure. Even services that encrypt messages in transit may not have the required level of security to make them HIPAA compliant. To make your email HIPAA compliant you should ensure you have end-to-end encryption, which encrypts both messages in transit and stored messages. Access controls are used to ensure only the intended recipient and the sender can access the messages.

Some email service providers require individual emails to be encrypted by clicking a button or using a portal. Since it is easy to forget to turn on encryption and accidentally send an unencrypted email, it is a better choice to encrypt all emails, not only those that contain ePHI. This will reduce the potential for human error.

The type of encryption used is also important. While previously Data Encryption Standard (DES) was considered secure, that is no longer the case. You should consult NIST for advice on suitable encryption standards. Currently AES 128, 192, or 256-bit encryption is recommended.

For many HIPAA-covered entities, especially smaller healthcare providers that do not have in-house IT staff to ensure their email is HIPAA-compliant, the use of a third-party HIPAA compliant email service provider is strongly recommended.

Research potential HIPAA compliant email service providers to ensure that they provide a service that is suitable for your requirements. A search on Google will produce several potential service providers.

Enter into a HIPAA-compliant business associate agreement with your email provider

If you use a third-party email provider, you should obtain a business associate agreement prior to using the service for sending ePHI. The business associate agreement outlines the responsibilities of the service provider and establishes that administrative, physical, and technical safeguards will be used to ensure the confidentiality, integrity and availability of ePHI.

If an email service provider is not prepared to enter into a business associate agreement, you should look elsewhere. There are several email service providers who are prepared to sign a BAA to allow them to work with HIPAA-covered entities and their business associates.

Ensure your email is configured correctly

Even when a BAA is obtained, there are still risks associated with email and it is possible to fail to configure the email service correctly and violate HIPAA Rules. Simply using an email service that is covered by a BAA does not make your email HIPAA compliant.

Google’s G Suite includes email and is covered by its business associate agreement. Though G Suite, email can be made HIPAA compliant provided the service is used alongside a business domain. Even if you want to use G Suite, care must be taken configuring the service to ensure end-to-end encryption is in place.

Note that G Suite is not the same as Gmail. Gmail is not intended for business use and cannot be made HIPAA compliant. Google does not sign a BAA for its free services, only for its paid services.

Develop policies on the use of email and train your staff

Once you have implemented your HIPAA compliant email service it is important to train staff on the correct use of email with respect to ePHI. There have been several data breaches that have occurred as a result of errors made by healthcare staff – The accidental sending of ePHI via unencrypted email and the sending of ePHI to individuals unauthorized to view the information. It is important to ensure that all staff are aware of their responsibilities under HIPAA and are trained on the use of the email service.

Ensure all emails are retained for 6 years

HIPAA requires covered entities and business associates to retain past email communications containing ePHI. The retention period is six years. Even for small to medium-sized healthcare organizations, storing 6 years of emails, including attachments, for all members of staff requires considerable storage space. Consider using a secure, encrypted email archiving service rather than email backups. Not only will this free up storage space, since an email archive is indexed, searching for emails in an archive is a quick and easy process. If emails need to be produced for legal discovery or for a compliance audit, they can be quickly and easily retrieved.

As with an email service provider, any provider of an email archiving service will also be subject to HIPAA Rules as they will be classed as a business associate. A BAA would need to be entered into with that service provider and reasonable assurances obtained that they will abide by HIPAA Rules.

Obtain consent from patients before communicating with them via email

HIPAA-covered entities should note that while it may be convenient to send emails containing ePHI to patients, consent to use email as a communication method must be obtained from the patient in writing before any ePHI is sent via email, even if a HIPAA compliant email provider is used. Patients must be advised that there are risks to the confidentiality of information sent via email. If they are prepared to accept the risks, emails containing ePHI can be sent without violating HIPAA Rules.

Seek legal advice on HIPAA compliance and email

If you are unsure of the requirements of HIPAA with respect to email, it is strongly recommended that you speak with a healthcare attorney that specializes in HIPAA to advise you of your responsibilities and the requirements of HIPAA with respect to email.

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