HIPAA Compliance News

March 2024 Healthcare Data Breach Report

March was a particularly bad month for healthcare data breaches with 93 branches of 500 or more records reported to the Department of Health and Human Services (HHS) Office for Civil Rights (OCR), a 50% increase from February and a 41% year-over-year increase from March 2023. The last time more than 90 data breaches were reported in a single month was September 2020.

The reason for the exceptionally high number of data breaches was a cyberattack on the rehabilitation and long-term acute care hospital operator Ernest Health. When a health system experiences a breach that affects multiple hospitals, the breach is usually reported as a single breach. In this case, the breach was reported individually for each of the 31 affected hospitals. Had the breach been reported to OCR as a single breach, the month’s breach total would have been 60, well below the average of 66.75 breaches a month over the past 12 months.

Healthcare data breaches in the past 12 months



healthcare data breaches in March 2020-2024

While the breach total was high, the number of individuals affected by healthcare data breaches fell for the fourth consecutive month to the lowest monthly total since January 2023. Across the 93 reported data breaches, the protected health information of 2,971, 249 individuals was exposed or impermissibly disclosed – the lowest total for March since 2020.

records compromised in healthcare data breaches in the past 12 months

healthcare records breached in march 2020-2024

Biggest Healthcare Data Breaches in March 2024

18 data breaches were reported in March that involved the protected health information of 10,000 or more individuals, all of which were hacking incidents. The largest breach of the month was reported by the Pennsylvanian dental care provider, Risa’s Dental and Braces.  While the breach was reported in March, it occurred 8 months previously in July 2023. A similarly sized breach was reported by Oklahoma’s largest emergency medical care provider, Emergency Medical Services Authority. Hackers gained access to its network in February and stole files containing names, addresses, dates of birth, and Social Security numbers.

Philips Respironics, a provider of respiratory care products, initially reported a hacking-related breach to OCR involving the PHI of 457,152 individuals. Hackers gained access to the network of the Queens, NY-based billing service provider M&D Capital Premier Billing in July 2023, and stole files containing the PHI of 284,326 individuals, an August 2023 hacking incident was reported by Yakima Valley Radiology in Washington that involved the PHI of 235,249 individuals, and the California debt collection firm Designed Receivable Solutions, experienced a breach of the PHI of 129,584 individuals. The details of the breach are not known as there has been no public announcement other than the breach report to OCR.

 Name of Covered Entity State Covered Entity Type Individuals Affected Breach Cause
Risas Dental & Braces PA Healthcare Provider 618,189 Hacking Incident
Emergency Medical Services Authority OK Healthcare Provider 611,743 Hacking Incident
Philips Respironics PA Business Associate 457,152 Exploited software vulnerability (MoveIT Transfer)
M&D Capital Premier Billing LLC NY Business Associate 284,326 Hacking Incident
Yakima Valley Radiology, PC WA Healthcare Provider 235,249 Hacked email account
Designed Receivable Solutions, Inc. CA Business Associate 129,584 Hacking Incident
University of Wisconsin Hospitals and Clinics Authority WI Healthcare Provider 85,902 Compromised email account
Aveanna Healthcare GA Healthcare Provider 65,482 Compromised email account
Ezras Choilim Health Center, Inc. NY Healthcare Provider 59,861 Hacking Incident (data theft confirmed)
Valley Oaks Health IN Healthcare Provider 50,034 Hacking Incident
Family Health Center MI Healthcare Provider 33,240 Ransomware attack
CCM Health MN Healthcare Provider 28,760 Hacking Incident
Weirton Medical Center WV Healthcare Provider 26,793 Hacking Incident
Pembina County Memorial Hospital ND Healthcare Provider 23,811 Hacking Incident (data theft confirmed)
R1 RCM Inc. IL Business Associate 16,121 Hacking Incident (data theft confirmed)
Ethos, also known as Southwest Boston Senior Services MA Business Associate 14,503 Hacking Incident
Pomona Valley Hospital Medical Center CA Healthcare Provider 13,345 Ransomware attack on subcontractor of a vendor
Rancho Family Medical Group, Inc. CA Healthcare Provider 10,480 Cyberattack on business associate (KMJ Health Solutions)


Data Breach Causes and Location of Compromised PHI

As has been the case for many months, hacking incidents dominated the breach reports. 76 of the month’s breaches were classed as hacking/IT incidents, which involved the records of 2,918,585 individuals, which is 98.2% of all records compromised in March. The average breach size was 38,402 records and the median breach size was 3,144 records. The nature of the hacking incidents is getting harder to determine as little information about the incidents is typically disclosed in breach notifications, such as whether ransomware or malware was used. The lack of information makes it hard for the individuals affected by the breach to assess the level of risk they face. Many of these breaches were explained as “cyberattacks that caused network disruption” in breach notices, which suggests they were ransomware attacks.

Causes of March 2024 healthcare data breaches

There were 11 unauthorized access/disclosure incidents reported involving a total of 36,533 records. The average breach size was 3,321 records and the median breach size was 1,956 records. There were 4 theft incidents and 1 loss incident, involving a total of 15,631 records (average: 3,126 records; median 3,716 records), and one improper disposal incident involving an estimated 500 records. The most common location for breached PHI was network servers, which is to be expected based on the number of hacking incidents, followed by compromised email accounts.

Location of breached PHI in March 2024 healthcare data breaches

Where Did the Data Breaches Occur?

The OCR data breach portal shows there were 77 data breaches at healthcare providers (2,030,568 records), 10 breaches at business associates (920,522 records), and 6 data breaches at health plans (20,159 records). As OCR recently confirmed in its Q&A for healthcare providers affected by the Change Healthcare ransomware attack, it is the responsibility of the covered entity to report breaches of protected health information when the breach occurs at a business associate; however, the responsibility for issuing notifications can be delegated to the business associate. In some cases, data breaches at business associates are reported by the business associate for some of the affected covered entity clients, with some covered entities deciding to issue notifications themselves. That means that data breaches at business associates are often not abundantly clear on the breach portal. The HIPAA Journal has determined the location of the breaches, with the pie charts below show where the breaches occurred, rather than the entity that reported the breach.

Data breaches at HIPAA-regulated entities in March 2024

Records breached at HIPAA-regulated entities in March 2024

Geographical Distribution of Healthcare Data Breaches

In March, data breaches were reported by HIPAA-regulated entities in 33 U.S. states. Texas was the worst affected state with 16 breaches reported, although 8 of those breaches were reported by Ernest Health hospitals that had data compromised in the same incident. California experienced 10 breaches, including 3 at Ernest Health hospitals, with New York also badly affected with 7 reported breaches.

State Breaches
Texas 16
California 10
New York 7
Pennsylvania 6
Indiana 5
Colorado & Florida 4
Illinois, Ohio & South Carolina 3
Arizona, Idaho, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Oklahoma & Utah 2
Alabama, Georgia, Kansas, Kentucky, Nevada, New Jersey, North Dakota, Oregon, Tennessee, Virginia, Washington, West Virginia, Wisconsin & Wyoming 1

HIPAA Enforcement Activity in March 2024

OCR announced one settlement with a HIPAA-regulated entity in March to resolve alleged violations of the HIPAA Rules. The Oklahoma-based nursing care company Phoenix Healthcare was determined to have failed to provide a daughter with a copy of her mother’s records when the daughter was the personal representative of her mother. It took 323 days for the records to be provided, which OCR determined was a clear violation of the HIPAA Right of Access and proposed a financial penalty of $250,000.

Phoenix Healthcare requested a hearing before an Administrative Law Judge, who upheld the violations but reduced the penalty to $75,000. Phoenix Healthcare appealed the penalty and the Departmental Appeals Board affirmed the ALJ’s decision; however, OCR offered Phoenix Healthcare the opportunity to settle the alleged violations for $35,000, provided that Phoenix Healthcare agreed not to challenge the Departmental Appeals Board’s decision.

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New Jersey Nursing Facility to Pay $100,000 CMP to Resolve HIPAA Right of Access Violation

The HHS’ Office for Civil Rights has announced another financial penalty has been imposed for a violation of the HIPAA Right of Access. Essex Residential Care, LLC, which does business as Hackensack Meridian Health, West Caldwell Care Center in New Jersey, has been ordered to pay a civil monetary penalty of $100,000 to resolve the alleged violation.

Hackensack Meridian Health operates skilled nursing facilities in New Jersey, including the West Caldwell Care Center. In May 2020, OCR received a complaint from the son of a mother who had received care at West Caldwell Care Center who alleged he had not been provided with a copy of her medical records within the 30 days allowed by the HIPAA Privacy Rule.

Son Not Provided with His Mother’s Records within 30 Days

The complainant was the personal representative of his mother and therefore should have been provided with a copy of his mother’s medical records. The complainant first asked for a copy of the records on April 19, 2020, via email, and on April 23, 2020, an administrator at West Caldwell Care Center advised him that the records could not be provided without a copy of a power of attorney, medical proxy or similar document executed by the mother, confirming that he was her personal representative.

The appropriate documentation was provided but West Caldwell Care Center still did not provide the requested records, which led to him filing a complaint with OCR. On October 15, 2020, OCR notified West Caldwell Care Center that an investigation had been opened as a result of the complaint and the correspondence included a data request pursuant to the investigation.

West Caldwell Care Center responded and acknowledged that the records had not been provided within the allowed 30 days and, in response to OCR’s investigation, sent the requested records in late November, which were received by the complainant on December 1, 2020, 161 days after the initial request was made.

West Caldwell Care Center Disagreed with OCR’s Determination

Most HIPAA Right of Access investigations are informally settled with OCR, a financial penalty is paid, and the covered entity agrees to adopt a corrective action plan which includes updates to its policies and procedures and training on HIPAA policies for staff members. In this case, West Caldwell Care Center’s attorney disagreed with OCR’s proposed resolution of the investigation. OCR then notified West Caldwell Care Center that the investigation had uncovered preliminary indications of non-compliance with the HIPAA Right of Access, and OCR provided West Caldwell Care Center with the opportunity to submit evidence of mitigating factors.

West Caldwell Care Center acknowledged that the complainant was not provided with the requested records, but the records were provided to another facility to which his mother had been transferred. West Caldwell Care Center also said that at the time of the initial request, there was ongoing litigation due to the non-payment of care costs. As another mitigating factor, West Caldwell Care Center said it was dealing with the COVID-19 pandemic, and that the complainant filed a complaint with OCR exactly 30 days after the request was made before West Caldwell Care Center’s response to the initial request was due. West Caldwell Care Center accepted that the matter should have been handled differently.

$100,000 Civil Monetary Penalty Imposed

OCR determined that West Caldwell Care Center failed to provide the requested records within the 30 days allowed by the HIPAA Privacy Rule and that the delay from June 23, 2020, to December 1, 2020, was a violation of the HIPAA Right of Access. The maximum civil monetary penalty was $206,080 based on the reasonable cause penalty tier (see: What are the penalties for HIPAA violations); however, per OCR’s reinterpretation of the language of the HITECH Act and its subsequent Notice of Enforcement Discretion, the penalty was capped at $100,000.

West Caldwell Care Center argued that a civil monetary penalty was not permitted because the violation was not due to wilful neglect and was timely corrected and that imposing a civil monetary penalty would be arbitrary and capricious and would violate the Administrative Procedure Act (APA). OCR disagreed that the violation was timely corrected and said the affirmative defense requirements were not met, and that the penalty was appropriate and reasonable given that the violation did not violate the APA and that the civil penalty amount was reasonable given the substantial delay providing the requested records.

West Caldwell Care Center said its staff believed they had responded in the allowed time frame by transferring the records to another facility; however, OCR’s view was that the records were not provided to the personal representative as required by HIPAA. West Caldwell Care Center was advised of its right to request a hearing with an administrative law judge; but on advice from its legal counsel, chose to waive that right.

“A patient’s timely access to health records is paramount for medical care. The Office for Civil Rights continues to receive complaints from individuals and personal representatives on behalf of individuals who do not receive timely access to their health records,” commented OCR Director Melanie Fontes Rainer. “OCR will continue to vigorously enforce this essential right to ensure compliance by health care facilities across the country.”

This is the fourth financial penalty imposed by OCR in 2024 to resolve alleged HIPAA violations and its 145th financial penalty to date. OCR has now fined 48 HIPAA-regulated entities for failing to provide patients or their personal representatives with timely access to the requested medical records that they are legally entitled to obtain.

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HHS Issues Guidance to Teaching Hospitals and Medical Schools on Informed Consent Requirements

The Department of Health and Human Services (HHS) has written to the nation’s teaching hospitals and medical schools to clarify the requirement to obtain informed consent from patients before they are subjected to sensitive examinations, especially on patients under anesthesia.

HHS Secretary Xavier Becerra, Office for Civil Rights Director Melanie Fontes Rainer, and CMS administrator Chiquita Brooks-LaSure explained in the letter that they are aware of media reports and medical and scientific literature that indicate that as part of the training of medical students, patients are subjected to sensitive and intimate examinations – including pelvic, breast, prostate, or rectal examinations – while under anesthesia, when proper informed consent has not been obtained from the patients.

The letter stresses that it is vital for hospitals and medical schools to obtain and document informed consent before examinations are performed and that informed consent is required in all circumstances. Patients have the right to refuse to have sensitive examinations performed for teaching purposes and can refuse to consent to previously unagreed examinations while under anesthesia. The CMS has issued new guidance that clarifies the requirements of the Hospital Conditions of Participation with respect to the CMS’s revision of its hospital interpretive guidance about informed consent.

OCR has also stressed that under the HIPAA Privacy Rule, patients have the right to restrict who can access their PHI, including in situations where they may be unconscious while having a medical procedure performed. OCR has provided a Q&A that explains this HIPAA Privacy Rule right with respect to examinations by medical students while under anesthesia, and subsequent examinations when the covered entity has agreed to restrict disclosures of PHI.

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Cyber Security for Healthcare: USA Summit

The HealthSec: Cyber Security for Healthcare Summit returns for its 2nd edition in Boston, Massachusetts on June 12th – 13th!

As operations in healthcare and life sciences industries are becoming increasingly digitized and internet-connected, the attack surface is expanding and cybersecurity risks are growing.

In the light of this, healthcare security leaders from across the hospitals & healthcare systems, healthcare equipment and services, medical devices, pharma and biotech industries are preparing to gather at the summit to learn how to protect their sensitive data from cyber attacks.

CPD certified event

This CPD certified event is your chance to unite with cybersecurity leaders from the likes of Abbott, GSK, Moderna, Pfizer and Johnson & Johnson through interactive sessions, as well as 6+ hours of networking, including seated lunches and a drinks reception.

Over 2 days, you’ll learn how to build resilience, mitigate risks and strengthen your cybersecurity strategy to combat new and ongoing threats through thought leadership talks, in-depth case-studies, panel discussions and roundtables. See list of speakers

Agenda highlights include:

  • A Culture of Shared Responsibility Between HDOs and MDMs: What It Looks Like, and How to Achieve It
  • How to Effectively Address Third Party Risk Management Pain Points in Healthcare
  • Case Study: Surviving a Ransomware Attack -Lessons Learned from the Healthcare Industry
  • Streamlining Regulatory Compliance in Healthcare: How Do We Get There?

For 15% discount on passes, register now using the code “HIPPA” at registration online here.

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February 2024 Healthcare Data Breach Report

There has been a fall in the number of reported healthcare data breaches for the second consecutive month, with 59 data breaches of 500 or more records reported to the Department of Health and Human Services’ Office for Civil Rights (OCR).


There were 10.6% fewer breaches reported in February than in January, which followed a 22% reduction between December 2023 and January 2024. Over the past 12 months, an average of 64 healthcare breaches have been reported each month, and while February is well under that average, 22.9% more breaches were reported in February 2024 than in February 2023.

For the third consecutive month, the number of breached records has fallen, reducing by 41.7% from January to 5,130,515 records, which is well below the 12-month average of 8.9 million records a month and around half as many records as were breached in February 2023. These figures could increase as three data breaches were reported as involving 500 or 501 records. These figures are often placeholders to meet HIPAA’s breach reporting requirements when the number of affected individuals has yet to be determined.

Biggest Healthcare Data Breaches in February 2024

There were 24 data breaches of 10,000 healthcare records in February, the largest of which was a 2.35 million record data breach at Medical Management Resource Group, which does business as American Vision Partners. A further 1.67 million records were compromised in breaches at Eastern Radiologists and Unite Here, both of which were hacking incidents. Only four breaches of 10,000 or more records were not hacking incidents.

Ransomware attacks continue to plague the healthcare industry, but it is difficult to determine the scale of the problem since breach notifications rarely mention whether ransomware was used. Ransomware groups typically steal data and leak it or sell it if the ransom is not paid. If the nature of the attack is not explained to the affected individuals, it is difficult for them to accurately assess the level of risk they face and make informed decisions about the steps they need to take to prevent their personal information from being misused.

Name of Covered Entity State Covered Entity Type Individuals Affected Business Associate Present
Medical Management Resource Group, L.L.C. AZ Business Associate 2,350,236 Hacking incident (Data theft confirmed)
Eastern Radiologists, Inc NC Healthcare Provider 886,746 Hacking incident
UNITE HERE NY Business Associate 791,273 Hacking incident
Northeast Orthopedics and Sports Medicine, PLLC NY Healthcare Provider 177,101 Hacking incident
Bold Quail Holdings, LLC (NewGen Administrative Services, LLC) CA Healthcare Provider 105,425 Hacking incident
Prime Healthcare Employee Health Plan CA Health Plan 101,135 Hacking incident at business associate (Keenan & Associates)
Egyptian Health Department IL Healthcare Provider 100,000 Hacking incident
Scurry County Hospital District dba Cogdell Memorial Hospital TX Healthcare Provider 86,981 Hacking incident
MedQ, Inc. TX Business Associate 54,725 Ransomware attack (Data theft confirmed)
Coleman Professional Services Inc. OH Healthcare Provider 51,889 Email accounts compromised
Greater Cincinnati Behavioral Health Services OH Healthcare Provider 50,000 Hacking incident
Kirkland & Ellis LLP IL Business Associate 48,802 Hacking incident (MOVEit Transfer)
Employee Benefits Corporation of America and Benefit Design Group, Inc. VA Health Plan 38,912 Hacking incident
Washington County Hospital and Nursing Home AL Healthcare Provider 29,346 Ransomware attack (Data theft confirmed)
Qualcomm Incorporated CA Health Plan 27,038 Hacking incident at a business associate
McKenzie County Healthcare System, Inc. ND Healthcare Provider 21,000 Email accounts compromised
East Carolina University’s Brody School of Medicine, a member of the ECU Health affiliated covered entity NC Healthcare Provider 19,085 Unauthorized access to a network server
Tiegerman NY Healthcare Provider 19,000 Hacking incident
Human Affairs International of California CA Business Associate 18,347 Unauthorized Access/Disclosure of paper/films
Maryville, Inc. NJ Healthcare Provider 15,503 Email account compromised
Bay Area Anesthesia, LLC FL Healthcare Provider 15,196 Hacking incident at business associate (Bowden Barlow Law)
AGC Flat Glass North America, Inc. Welfare Benefits Plan GA Health Plan 13,079 Hacking incident
Littleton Regional Healthcare NH Healthcare Provider 12,614 Misdirected email
CVS Caremark Part D Services, L.L.C. (“CVS”) RI Business Associate 11,193 Unauthorized Access/Disclosure of paper/films

Data Breach Causes and Location of Compromised PHI

As has been the case for many months, the main cause of healthcare data breaches in February was hacking. In February, there were 41 data breaches classed as hacking/IT incidents – 69.5% of the month’s data breaches. These incidents typically see large numbers of records compromised and February was no exception. Across those 41 incidents, the protected health information of 5,017,167 individuals was exposed or compromised – 97.8% of the month’s breached records. The 16 largest healthcare data breaches in February were all hacking incidents. The average breach size was 122,370 records and the median breach size was 7,288 records.

HIPAA-regulated entities reported 16 data breaches that were classed as unauthorized access/disclosure incidents. Across those 16 data breaches, the records of 104,359 individuals were accessed by unauthorized individuals or were impermissibly disclosed. The largest of those incidents was a phishing attack that saw multiple email accounts compromised and the records of 21,000 individuals exposed. The average breach size was 6,522 records and the median breach size was 2,516 records. There were two theft incidents involving the records of 8,989 individuals. No loss or improper disposal incidents were reported in February. The most common location of breached healthcare data was network servers, followed by email accounts.

While it is not possible to prevent all data breaches, many could be avoided by ensuring compliance with the HIPAA Security Rule and implementing OCR’s HPH Cybersecurity Performance Goals (CPGs). The CPGs are split into essential CPGs and advanced CPGs. The Essential CPGs address common vulnerabilities, will significantly improve an organization’s security posture and incident response, and minimize residual risk. The Enhanced CPGs are intended to help HPH sector organizations mature their cybersecurity capabilities and improve their defences against additional attack vectors. A recent IBM study determined that 85% of cyberattacks in critical infrastructure sectors could have been prevented with basic security measures such as those included in the essential CPGs.

Where Did the Data Breaches Occur?

OCR’s data breach portal shows there were 33 data breaches at healthcare providers (1,632,712 records), 16 data breaches at health plans (212,785 records), and 10 data breaches at business associates (3,285,018 records). These figures show the reporting entity rather than where the data breach occurred. When a data breach occurs at a business associate, it may be reported by the business associate, the affected covered entities, or a combination of the two. For example, in February,16 data breaches were reported by health plans, but 8 of those breaches occurred at business associates. The pie charts show where the data breaches occurred rather than the entity that reported the breach.

Geographical Distribution of Healthcare Data Breaches

In February, large healthcare data breaches were reported by HIPAA-regulated entities in 27 states and the District of Columbia. California had the most breaches but Arizona was the worst affected in terms of the number of breached records, with 2,351,027 records compromised in 2 data breaches.

State Breaches
California 6
New York & Ohio 5
Illinois, Kentucky & Texas 4
Alabama, Florida & Michigan 3
Arizona, North Carolina & Rhode Island 2
Colorado, Georgia, Iowa, Maryland, Massachusetts, Missouri, New Hampshire, New Jersey, North Dakota, Oklahoma, Pennsylvania, South Carolina, Tennessee, Virginia, West Virginia & the District of Columbia 1

HIPAA Enforcement Activity in February 2024

In February, OCR announced two settlements with HIPAA-regulated entities to resolve HIPAA compliance failures. OCR investigated Montefiore Medical Center, a non-profit hospital system based in New York City, over a data breach involving a malicious insider. The breach was discovered in 2015 by the New York Police Department, and the investigation revealed a former employee had stolen the data of 12,517 patients over a 6-month period in 2013. OCR launched an investigation in 2015, but it took until February 2024 for the case to be settled.

OCR identified multiple HIPAA failures, and the severity of those failures warranted a significant fine. Montefiore Medical Center was determined to have failed to conduct a comprehensive risk analysis, failed to implement procedures to regularly review records of information system activity, and failed to implement hardware, software, and/or procedural mechanisms that record and examine activity in all information systems that contain or use ePHI. Montefiore Medical Center agreed to pay a $4.75 million penalty to settle the alleged HIPAA violations.

OCR also announced a $40,000 settlement with Green Ridge Behavioral Health, a Gaithersburg, MD-based provider of psychiatric evaluations, medication management, and psychotherapy. This was the second settlement to be reached with a HIPAA-regulated entity over a ransomware attack. OCR determined that a comprehensive risk analysis had not been conducted, there was a failure to manage risks to the confidentiality, integrity, and availability of ePHI, and there were insufficient policies and procedures for reviewing records of information system activity. These failures contributed to the ransomware attack and the impermissible disclosure of the PHI of more than 14,000 patients.

State Attorneys General also have the authority to issue financial penalties for HIPAA violations; however, no civil monetary penalties or settlements were announced in February.

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OCR Updates Guidance on the Use of Online Tracking Technologies by HIPAA Regulated Entities

The Department of Health and Human Services’ Office for Civil Rights (OCR) has issued updated guidance for entities regulated by the Health Insurance Portability and Accountability Act (HIPAA) on the use of online tracking technologies. The updated guidance is intended to provide greater clarity for HIPAA-regulated entities on the use of these technologies. OCR has not changed its position on the use of these technologies or how HIPAA applies.

Why OCR Issued Guidance on Online Tracking Technologies

OCR first issued the guidance in December 2022 after research into the use of these technologies revealed that most U.S. hospitals had added these technologies on their websites, which transmit user data to third parties such as Meta (Facebook), Google, and others. A variety of user data is collected and transmitted about users’ interactions on websites and apps, and some of that data can include protected health information.

The initial guidance explained that these technologies could not be used by HIPAA-regulated entities unless there was a business associate agreement in place with the provider of the technologies and the disclosures of protected health information are permitted by the HIPAA Privacy Rule. Alternatively, consent must be obtained from individuals before the information is transmitted to third parties. OCR has previously stated that non-compliant use of online tracking technologies is an enforcement priority, and in July 2023, OCR and the Federal Trade Commission (FTC) sent warning letters to around 130 hospitals and telehealth providers about the risks of using these technologies and the potential for impermissible disclosures of PHI.

OCR Sued Over its Tracking Technology Guidance

Since the providers of these technologies typically do not sign business associate agreements with HIPAA-regulated entities and obtaining consent from individuals is costly and challenging, these technologies can generally not be used by HIPAA-regulated entities without risking violating the HIPAA Rules.  The American Hospital Association (AHA) urged OCR to reconsider its guidance, and when OCR failed to do so, AHA filed a lawsuit challenging the legality of the guidance. The AHA maintains that these technologies are critical to the function of websites, and that prohibiting their use ultimately harms healthcare providers and patients. Further, while HIPAA-regulated entities were not permitted to use these technologies, the code remained on many government websites, including Medicare.gov, Tricare.mil, Health.mil, and various Veterans Health Administration sites.

Online Tracking Technology Guidance Updated to Clear up Confusion

OCR’s updated guidance provides a general overview of how the HIPAA Rules apply to the use of tracking technologies and includes additional examples of when the code can and cannot be used, tips for complying with HIPAA, and OCR’s enforcement priorities regarding online tracking technologies. In the updated guidance, OCR stressed that “regulated entities are not permitted to use tracking technologies in a manner that would result in impermissible disclosures of PHI to tracking technology vendors or any other violations of the HIPAA Rules.” Protected health information is information that relates to the past, present, or future health, health care, or payment for health care, that has identifiers that link that information to an individual or allow that individual to be identified. If any of that information is collected on a web page, the technologies cannot be used without a business associate agreement with the provider of the code and the disclosures must be permitted by the HIPAA Privacy Rule, or consent must be obtained from individuals. Consent cannot be obtained by including information about these disclosures in the Notice of Privacy Practices, via a pop-up on the websites or banner stating that use of the site may involve the disclosure of health information to a third party, or by asking a user to either accept or reject cookies. A valid HIPAA authorization is required.

OCR suggests that if a vendor will not sign a BAA covering the use of the code, then a different vendor should be found that will sign a BAA. Alternatively, a customer data platform vendor could be used, which de-identifies the PHI before the information is sent to a third party. It is not permitted to transfer PHI to a vendor without a BAA even if the vendor claims that they will strip out any identifying information after the disclosure. The collection of PHI is more likely on user-authenticated pages such as patient portals; however, there is the potential for PHI to be disclosed on unauthenticated web pages. For instance, on an appointment booking page that collects no health information, if the user enters their email address and that information is transmitted to a third party, that would be classed as an impermissible disclosure of PHI.

For some web pages, the nature of the visit determines whether HIPAA applies. For instance, if a student is searching for information on oncology services when researching the availability of those services pre- and post-pandemic, the collection and transmission of their IP address and other personally identifiable information to a third party without a BAA is not a HIPAA violation, as HIPAA does not apply as there is no PHI involved. If a patient is visiting the same pages to get a second opinion about their diagnosis or cancer treatment, the transmission of the same data would be a HIPAA violation without a BAA, as that information would be classed as PHI. Other examples have been added to the guidance to make it clear when HIPAA applies and when it does not.

OCR explained its enforcement priorities with respect to online tracking technologies and said it is prioritizing compliance with the HIPAA Security Rule in investigations into the use of online tracking technologies. “OCR’s principal interest in this area is ensuring that regulated entities have identified, assessed, and mitigated the risks to ePHI when using online tracking technologies and have implemented the Security Rule requirements to ensure the confidentiality, integrity, and availability of ePHI,” explained OCR in the guidance. “OCR investigations are fact-specific and may involve the review of technical information regarding a regulated entity’s use of any tracking technologies. OCR considers all of the available evidence in determining compliance and remedies for potential noncompliance.”

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OCR Opens HIPAA Compliance Investigation of Change Healthcare

The HHS’ Office for Civil Rights has opened an investigation of Change Healthcare following its February 21, 2024, cyberattack, just three weeks after the attack occurred. Typically, OCR’s investigations of cyberattacks and data breaches are initiated several months after the breach is reported, which may even be years after the breach occurred. In this case, the incident has not even been reported to OCR as it is still under investigation. Change Healthcare has only just brought its systems back online – 99% of pharmacy and payment platforms are now up and running according to a recent statement  and there are still 5 weeks before the HIPAA Breach Notification Rule’s deadline for reporting breaches is reached.

The rapidly initiated investigation is in response to the magnitude of the incident, which is disrupting health care and billing information systems nationwide and has been estimated to be costing providers well over a billion in reimbursement losses per day due to Change Healthcare’s systems being unavailable. The disruption caused to providers that use Change Healthcare’s systems is causing extreme financial difficulties and some providers have had to make difficult decisions about whether they can continue to operate. As such, the incident poses a direct threat to critically needed patient care and essential operations of the healthcare industry.

In a “Dear Colleague” letter uploaded to the HHS website, OCR Director Melanie Fontes Rainer said “Given the unprecedented magnitude of this cyberattack, and in the best interest of patients and health care providers, OCR is initiating an investigation into this incident. OCR’s investigation of Change Healthcare and UHG will focus on whether a breach of protected health information occurred and Change Healthcare’s and UHG’s compliance with the HIPAA Rules.”

OCR also explained in the letter that its interest in other entities that partner with Change Healthcare and UnitedHealth Group is secondary. While OCR is not prioritizing investigations of healthcare providers, health plans, and business associates that have partnered with Change Healthcare or UnitedHealth Group, OCR has taken the opportunity to remind them that they have regulatory responsibilities under HIPAA and they must ensure that they have business associate agreements in place and that they issue timely notifications to the HHS and any affected individuals. In the letter, the OCR Director shared resources to assist HIPAA-regulated entities with protecting records, systems, and patients from cyberattacks.

“This is an unusual move by OCR but given the far-reaching impact of the cyberattack and the massive effect it is having on healthcare organizations that rely on Change Healthcare’s services and systems, the breach warrants swift investigation to determine if Change Healthcare and its parent company were fully compliant with the HIPAA Rules,” commented Steve Alder, Editor-in-Chief, The HIPAA Journal.

Lisa Plaggemier, Executive Director of the National Cybersecurity Alliance (NCA), offered some advice for readers of The HIPAA Journal and shared some of the lessons that can be learned from this devastating cyberattack.

Lisa Plaggemier, Executive Director of the National Cybersecurity Alliance

Lisa Plaggemier, Executive Director of the National Cybersecurity Alliance

The cyberattack on UnitedHealth Group and Change Healthcare serves as a stark reminder of the critical need for robust cybersecurity measures within the healthcare sector. Firstly, healthcare organizations must prioritize comprehensive risk assessments and implement stringent security protocols to safeguard sensitive patient data. This includes regular security audits, employee training on cybersecurity best practices, encryption of data both at rest and in transit, and proactive monitoring for suspicious activities. Furthermore, investments in cutting-edge cybersecurity technologies and partnerships with reputable cybersecurity firms can bolster defenses against evolving cyber threats.

Additionally, the incident highlights the indispensable role of government oversight and regulation in safeguarding healthcare data. Government agencies, such as the Department of Health and Human Services’ Office for Civil Rights, play a vital role in enforcing compliance with health privacy laws, such as the Health Insurance Portability and Accountability Act (HIPAA). Through rigorous investigations and enforcement actions, regulatory bodies can hold healthcare entities accountable for lapses in data protection and ensure swift responses to cyber incidents. Moreover, collaboration between government agencies, law enforcement, and private sector stakeholders is essential to enhance threat intelligence sharing and coordinate responses to cyber threats, ultimately bolstering the resilience of the healthcare sector against future cyberattacks.

In light of the recent cyberattack on UnitedHealth Group and Change Healthcare, consumers and patients also play a crucial role in protecting their personal health information. One key step is to remain vigilant about sharing sensitive data, both online and offline, only with trusted healthcare providers and entities. Patients should inquire about the security measures implemented by their healthcare providers, including encryption protocols and data breach response plans. Additionally, individuals should regularly review their medical bills and insurance statements for any discrepancies or unauthorized charges, which could indicate fraudulent activity. Furthermore, maintaining strong, unique passwords for healthcare portals and enabling multi-factor authentication can add an extra layer of security to personal health information. By staying informed, vigilant, and proactive, consumers can contribute to safeguarding their own health data and mitigating the risks posed by cyber threats in the healthcare sector.

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Indiana Attorney General Files Lawsuit Against Apria Healthcare Alleging HIPAA Violations

Indiana Attorney General Todd Rokita has filed a lawsuit against Apria Healthcare alleging violations of the Health Insurance Portability and Accountability Act (HIPAA) and state laws following a cyberattack and data breach that affected 1,869,598 individuals, including 42,000 Hoosiers.

Apria Healthcare is an Indianapolis, IA-based provider of home healthcare equipment and related services. Apria Healthcare was notified by the Federal Bureau of Investigation (FBI) on September 1, 2021, about unauthorized access to its internal systems. The investigation confirmed that between April 5, 2019, and May 7, 2019, and again from August 27, 2021, to October 10, 2021, an unauthorized third party accessed its internal systems, including several employee email accounts. The electronic protected health information exposed included names, birth certificates, financial information, Social Security numbers, medical histories, and health information. Apria Healthcare determined that the reason for the intrusion was to obtain funds from Apria Healthcare rather than patient data.  Notifications were mailed to the affected individuals in May 2023, more than 20 months after being notified about the breach by the FBI.

Attorney General Rokita alleged that Apria Healthcare deliberately concealed the data breach by failing to issue notifications for 629 days and that the delay violated the HIPAA Breach Notification Rule, which requires individual notifications to be issued to the affected individuals within 60 days of the discovery of a data breach. The delayed notification also violated Indiana’s Disclosure of a Security Breach Act, which requires notifications to be issued without undue delay and not more than 45 days after the discovery of a data breach. Owens and Minor acquired Apria Healthcare in March 2022. Attorney General Rokita alleged that Owens and Minor was aware of the data breaches yet still failed to issue timely notifications.

Attorney General Rokita also alleged violations of the HIPAA Privacy and Security Rules – the failure to implement appropriate technical safeguards to ensure the confidentiality, integrity, and availability of ePHI, and the impermissible disclosure of the ePHI of more than 1.8 million individuals – and violations of the Indiana Deceptive Consumer Sales Act. “Patients should be able to trust their medical providers at all times,” said Attorney General Rokita. “All Hoosier patients deserve their privacy, especially when it comes to medical care. When your private information is accessible or leaked to a stranger, you’re susceptible to life-altering threats, such as identity theft and financial ruin. Our office has adamantly fought back against careless companies who disregard major cybersecurity threats.”

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CMS Updates Policy to Allow Texting Patient Information and Patient Orders

The Centers for Medicare and Medicaid Services (CMS) at the Department of Health and Human Services (HHS) has updated its policy on texting patient information between members of the care team and texting patient orders. Clinical teams are now permitted to text patient information provided they use a HIPAA-compliant texting platform to do so, and provided they are in compliance with the Conditions of Participation (CoPs). The CMS also permits the texting of patient orders.

In January 2018, the CMS issued a QSO-19-10-Hospital, CAHs Revised memorandum – Texting of Patient Information among Healthcare Providers in Hospitals and Critical Access Hospitals (CAHs) – acknowledging that many hospitals had adopted a secure text messaging platform for communicating among hospital and CAH team members; however, the CMS stated that texting patient orders from a provider to a member of the care team was not compliant with the CoPs due to concerns about privacy, record retention, and the confidentiality, security, and integrity of systems at the time. When the memorandum was written, most hospitals did not have the capability to use secure text messaging platforms to incorporate messages into electronic health records (EHRs). Improvements in technology over the past 6 years, such as the use of encryption, ensure that sensitive health information can be transmitted and stored securely and advances in technology, especially the application interface capabilities of text messaging platforms, allow data to be transferred into EHRs.

While texting patient orders is now permitted, Computerized Provider Order Entry (CPOE) is the preferred method of order entry by a provider. If an order is entered via CPOE and immediately downloaded into the hospital’s or CAH’s EHR system, it is permitted under the CoPs because the order is dated, timed, authenticated, and promptly placed in the medical record. However, providers must utilize and maintain systems/platforms that are secure and encrypted. They must ensure the integrity of author identification and minimize risks to patient privacy and confidentiality, as required by HIPAA.

In addition, procedures and processes should be implemented that routinely assess the security and integrity of the texting systems/platforms to avoid negative outcomes that could compromise the care of patients. Any provider that opts to incorporate texting patient information or orders into the EHR should ensure that the platform is compliant with the requirements of the HITECH Act and HIPAA.

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