HIPAA Compliance News

Why is HIPAA Important?

Posted by HIPAA Journal

HIPAA is important because, due to the passage of the Health Insurance Portability and Accountability Act, the Department of Health and Human Services was able to develop standards that protect the privacy of individually identifiable health information and the confidentiality, integrity, and availability of electronic Protected Health Information.

HIPAA was introduced in 1996, primarily to address one particular issue: Insurance coverage for individuals between jobs and with pre-existing conditions. Without HIPAA, employees faced a potential loss of insurance coverage between jobs. Because of the cost of HIPAA’s primary objective to health insurance companies – and the risk that the cost would be passed onto employers and individuals as higher premiums, Congress instructed the Secretary for Health and Human Services to develop standards that would reduce healthcare insurance fraud and simplify the administration of healthcare transaction.

Due to the increased number of transactions being conducted electronically, standards were also developed to protect the confidentiality, integrity, and availability of electronic Protected Health Information when it was collected, received, maintained and transmitted between healthcare providers, health plans, and health care clearinghouses. Further standards were developed to protect the privacy of individually identifiable health information (in any format) and to give individuals increased rights and control over their health information. The standards became known respectively as the HIPAA Security Rule and HIPAA Privacy Rule.

Why is HIPAA Important for Healthcare Organizations?

HIPAA introduced a number of important benefits for the healthcare industry to help with the transition from paper records to electronic copies of health information. HIPAA has helped to streamline administrative healthcare functions, improve efficiency in the healthcare industry, and ensure protected health information is shared securely.

The standards for recording health data and electronic transactions ensures everyone is singing from the same hymn sheet. Since all HIPAA-covered entities must use the same code sets and nationally recognized identifiers, this helps enormously with the transfer of electronic health information between healthcare providers, health plans, and other entities.

Why is HIPAA Important for Patients?

Arguably, the greatest benefits of HIPAA are for patients. HIPAA compliance is important because it ensures healthcare providers, health plans, healthcare clearinghouses, and business associates of HIPAA-covered entities must implement multiple safeguards to protect sensitive personal and health information.

While no healthcare organization wants to expose sensitive data or have health information stolen, without HIPAA there would be no requirement for healthcare organizations to safeguard data – and no repercussions if they failed to do so.

HIPAA established rules that require healthcare organizations to control who has access to health data, restricting who can view health information and who that information can be shared with. HIPAA helps to ensure that any information disclosed to healthcare providers and health plans, or information that is created by them, transmitted, or stored by them, is subject to strict security controls. Patients are also given control over who their information is released to and who it is shared with.

HIPAA is important for patients who want to take a more active role in their healthcare and want to obtain copies of their health information. Even with great care, healthcare organizations can make mistakes when recording health information. If patients are able to obtain copies, they can check for errors and ensure mistakes are corrected.

Obtaining copies of health information also helps patients when they seek treatment from new healthcare providers – information can be passed on, tests do not need to be repeated, and new healthcare providers have the entire health history of a patient to inform their decisions. Prior to the Introduction of the HIPAA Privacy Rule, there was no requirements for healthcare organizations to release copies of patients’ health information.

Why is HIPAA Important? FAQs

What might happen to healthcare data if it were not protected by HIPAA?

What might happen to healthcare data if it were not protected by HIPAA is that it could be stolen and used to commit healthcare fraud. Healthcare data is a valuable commodity on the black market because it can be used by uninsured or underinsured individuals to obtain expensive healthcare treatment. Healthcare fraud results in increased insurance costs, which are passed down to employers and individuals in the form of increased insurance premiums.

What are the financial benefits for healthcare providers of complying with HIPAA?

The financial benefits for healthcare providers of complying with HIPAA include better patient outcomes and higher satisfaction scores, increased staff morale and employee retention rates, and fewer readmissions – a key factor in avoiding CMS payment penalties under the Hospitals Readmissions Reduction Program and other value-based initiatives.

Why is it important for healthcare professionals to comply with HIPAA?

It is important for healthcare professionals to comply with HIPAA to build a culture of trust with patients. If a patient feels any confidential information shared with a healthcare professional will remain confidential, they are more likely to be more forthcoming about health issues and the symptoms they are experiencing.

With more information available to them, healthcare professionals can make better informed diagnoses and treatment decisions. This results in better patient outcomes, which leads to higher morale. Effectively, by complying with HIPAA, healthcare professionals enjoy more rewarding experiences and get more from their vocation.

If patients are unable to exercise their patients´ right allowed by HIPAA, what might happen?

If patients are unable to exercise their patients’ rights allowed by HIPAA, the likely outcome will be a complaint to the Privacy Officer or HHS’ Office for Civil Rights. This could result in a significant financial penalty and a time-consuming corrective action plan.

Allowing patients to exercise their rights under HIPAA is important because it´s not unheard of for mistakes to be made with patients´ records that can result in misdiagnoses, the wrong treatment being provided, or the wrong medication being prescribed.

By giving patients the right to inspect their medical records and make corrections when necessary, the risks of incorrect diagnoses, treatments, and medications are mitigated. Additionally, having access to their records helps patients take more responsibility for their own wellbeing.

How do patients control who their information is released to and shared with?

Patients control who their information is released to and shared with by having the right to request privacy protection for protected health information (45 CFR §164.522). This right enables patients to request restrictions on how PHI is used and disclosed for treatment, payment, and health care operations, and also for involvement in the individual’s care and notification purposes.

Why is the HIPAA Privacy Rule important?

The HIPAA Privacy Rule is important because it sets a “federal floor” of privacy protections and rights for individuals to control healthcare data. This means that Covered Entities throughout the country must comply with the HIPAA Privacy Rule unless a state law offers more stringent privacy protections or greater rights for individuals.

How does HIPAA protect sensitive health information?

HIPAA protects sensitive health information via regulations, standards, and implementation specifications. Covered entities and business associates are required to comply with applicable regulations, standards, and implementation specifications or potentially face a civil monetary penalty from HHS’ Office for Civil Rights – even if no breach of unsecured PHI has occurred.

Who must comply with HIPAA rules?

Entities that must comply with HIPAA Rules include health plans, health care clearinghouses, and healthcare providers that conduct electronic transactions for which the Department of Health and Human Services has developed standards (collectively known as “covered entities”). Businesses that provide services for or on behalf of covered entities that involve the use of disclosure of Protected Health Information are also required to comply with applicable HIPAA Rules.

Why is the HIPAA Breach Notification Rule important?

The HIPAA Breach Notification Rule is important because it requires covered entities and business associates to notify individuals when unsecured PHI has been accessed impermissibly so that individuals can take steps to protect themselves against theft and fraud. The Rule is also important because it makes covered entities and business associates accountable for shortcomings in their compliance efforts.

How does HIPAA support the digitization of health records?

HIPAA supports the digitalization of health records by laying the foundations of a cybersecurity framework to protect electronic health records from unauthorized access. The framework enabled Congress to incentivize the digitalization of health records via the Meaningful Use Program (now the Promoting Interoperability Program), which in turn improved the flow of health information between healthcare providers.

How has HIPAA evolved to meet the changing needs of health information technology?

HIPAA has evolved to meet the changing needs of health information technology via several HIPAA updates. The biggest recent HIPAA update was the Omnibus Final Rule in 2013. However, multiple changes to HIPAA have been proposed since 2020 onward, which would support the further evolution of HIPAA to meet the changing needs of health information technology.

How is compliance with HIPAA enforced?

Compliance with HIPAA is enforced by two offices within the Department for Health and Human Services – the Office of Civil Rights (responsible for compliance with Parts 160 and 164 of the HIPAA Administrative Simplification Regulations) and the Centers for Medical and Medicaid Services (responsible for compliance with Part 162). The Federal Trade Commission also enforces compliance with HIPAA for health appliance vendors that do not qualify as HIPAA covered entities, but who are required to comply with the Breach Notification Rule under Section 5 of the FTC Act.

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What Happens if You Violate HIPAA?

Posted by HIPAA Journal

What happens if you violate HIPAA depends on the nature and consequences of the violation, the motive for the violation, and whether you knew – or should have known – that the violation was indeed a violation. What happens if you violate HIPAA can also depend on if or how the violation is identified.

To help explain the many different factors that can influence what happens when you violate HIPAA, we will use as an example a healthcare employee who shares their EHR login credentials in the belief that a junior colleague wants to access a patient´s file in order to phone the patient´s family with an update.

If the junior colleague only uses the login credentials to obtain a phone number and phone the patient´s family with an update – and the patient has not objected to this information being shared with their family – no harm has occurred and there has been no impermissible use or disclosure of PHI.

Nonetheless, although the motive for sharing the EHR login credential is well meaning (and the healthcare employee does not have to stop what they are doing to retrieve the information for the colleague), the action is a violation of HIPAA because each member of the workforce must be assigned a unique user identifier to track user activity when they have access to PHI (§164.312).

What Happens if You Violate HIPAA Like This?

This will depend on whether the violation is identified, how it is identified, and whether either party knew that sharing login credentials is a violation of HIPAA. Possibly one of the worst outcomes from the event is that it is not identified because this may lead to further compliance shortcuts being taken which – if unchecked – could lead noncompliance becoming a “cultural norm”.

If the violation is identified by a senior employee or an alert member of the IT team, it will likely be reported to the compliance officer. What happens then depends on whether either employee has been told that sharing login credentials is a violation of HIPAA via HIPAA training. If so, both could face sanctions depending on the consequences of the violation.

The consequences of the violation can vary between no harm occurring at all to an impermissible disclosure of PHI if, for example, the message was left with a non-family member due to a lack of identity verification. The latter example could lead to the patient making a compliant to the healthcare facility or HHS´ Office for Civil Rights (OCR).

If a complaint is made to OCR, and the agency decides to conduct a compliance review, the consequences could consist of a corrective action plan to prevent login credentials being shared in the future; or, if the violation was attributable to a lack of training, the review could escalate to a full investigation – during which other areas of non-compliance may be identified.

If other areas of non-compliance are identified, the consequences of a well-meaning action could result in the healthcare facility being issued with a civil monetary penalty. Further civil monetary penalties could be issued by a State Attorney General or by a civil court if the impermissible disclosure of PHI resulted in the patient suffering personal harm (i.e., identity theft).

Criminal Penalties for Sharing Passwords in Violation of HIPAA

In addition to sanctions, the healthcare worker and the junior colleague could also face criminal penalties if their employer has a policy prohibiting the sharing of login credentials. This is because “a person who knowingly […] uses or causes to be used a unique health identifier […] shall be considered to have obtained or disclosed individually identifiable health information without authorization” – an offence under §1177 of the Social Security Act.

In this case, the healthcare worker “caused” the login credentials to be used by sharing them with the junior colleague, while the junior colleague “used” them. It is also important that the employer has a policy prohibiting the sharing of login credentials, otherwise the two employees could claim they did not do so knowingly (in which case, the employer could be sanctioned by OCR for failing to conduct a risk assessment and develop policies prohibiting password sharing).

The criminal penalties for sharing passwords in violation of HIPAA depend on the motive for knowingly and wrongfully disclosing individually identifiable health information. Just doing it could, in theory, attract a fine of up to $50,000 and a jail sentence of up to a year. In the event that the junior colleague obtained the patients health information and disclosed it someone else, they could receive:

  • A fine of up to $100,000 and up to five years in jail if the offense was committed under false pretenses, or
  • A fine of up to $250,000 and up to ten years in jail if the offense was committed to sell, transfer, or use the PHI for commercial advantage, personal gain, or malicious harm.

While it might seem this is an extreme example of what happens if you violate HIPAA, it is important to be aware the laws exist that enable these consequences to transpire. Therefore, it is important for HIPAA Covered Entities and Business Associates to conduct comprehensive risk assessments, develop policies to mitigate risks from all foreseeable threats, and train all members of the workforce on the policies. Thereafter, it is important for workforces to comply with the policies.

What Happens if You Violate HIPAA? FAQs

Do other types of HIPAA violations have the same consequences?

All violations of HIPAA that contravene an employer´s HIPAA policies will likely attract sanctions, while those that result in a complaint being made to OCR could result in enforcement action. Violations that involve the knowing and wrongful disclosure of PHI have to be notified by a Covered Entity to OCR, who then review the case and refer it to the Department of Justice.

Is it only Security Rule violations that attract sanctions?

No. While the scenario above relates to a Security Rule violation, the violation of any Privacy Rule policy that results in the knowing and wrongful disclosure of PHI could have the same outcome. The important consideration is whether a policy exists to explain it is a violation, and that the workforce has been informed of the policy – and the sanctions for violating the policy – via HIPAA training.

Why do Covered Entities have to notify violations to OCR?

Under the Breach Notification Rule, Covered Entities have to notify OCR (and affected individuals) when there has been an impermissible disclosure of unsecured PHI. A knowing and wrongful disclosure of PHI qualifies as an impermissible disclosure of unsecured PHI because the Covered Entity has no control over how the disclosed PHI will be further used or disclosed.

Why might a patient complain if they have consented to family members being contacted?

If the patient has consented to family members being contacted, but individually identifiable health information is disclosed to a third party, the patient could complain the disclosure is a violation of their privacy rights. Consequently, it is important healthcare professionals verify the identity of the person they are speaking with before disclosing Protected Health Information.

Has anybody ever been jailed for violating HIPAA?

Yes. The following links are just a few examples of employees receiving custodial sentences for impermissibly obtaining and disclosing Protected Health Information.

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Avalon Healthcare Settles HIPAA Case with Oregon and Utah State AGs and Pays $200,000 Penalty

Posted by HIPAA Journal

Avalon Healthcare has agreed to settle alleged violations of the Health Insurance Portability and Accountability Act (HIPAA) and state laws with the Oregon and Utah Attorneys General that were uncovered during an investigation of a 2019 breach of the personal and protected health information of 14,500 of its employees and patients.

Avalon Healthcare is part of the Avalon Health Care Group and provides skilled nursing, therapy, senior living, assisted living, and other medical services throughout Oregon, Utah, California, Nevada, Washington, and Hawaii. In July 2019, an employee responded to a phishing email and disclosed credentials that allowed an email account to be accessed by unauthorized individuals. The account contained sensitive information such as names, addresses, Social Security numbers, dates of birth, driver’s license numbers, medical treatment information, and some financial information. It took 10 months from the date of the breach for the incident to be reported to the HHS and state attorneys general, and for affected individuals to be notified.

Oregon Attorney General Ellen Rosenblum and Utah Attorney General Sean Reyes launched an investigation into the data breach that focused on the email security practices at Avalon Healthcare and compliance with the HIPAA Security and Breach Notification Rules and state data breach notification statutes. The HIPAA Breach Notification Rule requires notifications to be issued about breaches of protected health information without undue delay and no more than 60 days from the date of the breach. In Oregon, data breach notifications must be issued in the most expeditious manner, and no later than 45 days after the date of discovery of the breach. The investigation uncovered potential violations of the Oregon Unlawful Trade Practices Act and HIPAA with respect to breach notifications and data security. Avalon Healthcare agreed to settle the case to avoid further controversy and expense.

Under the terms of the settlement, Avalon Healthcare has agreed to comply with the requirements of state laws and HIPAA and will develop, implement, and maintain an information security program that includes reasonable data security practices to ensure all personal information and protected health information is adequately protected. An individual will be designated as having overall control of the information security program and a HIPAA compliance officer will be appointed. The information security program will include logging and monitoring of the network, multi-factor authentication, email filtering, and at least twice-yearly security awareness training for the workforce. Security awareness training must cover phishing and social engineering, and include phishing simulation exercises. Avalon Healthcare has also agreed to develop, implement, maintain, and test a data incident response plan and to implement and maintain a risk assessment and risk management program. Avalon Healthcare will also revise its email data retention policies to ensure that data is only kept in email accounts for as long as there is a legal basis to retain the information and all emails containing PHI will be encrypted.

In addition to the commitment to compliance with HIPAA and state laws, Avalon Healthcare will pay a $200,000 financial penalty, which will be split equally between the Oregon and Utah state attorneys general and will be used to pay for legal fees, investigation costs, and the future enforcement of compliance with HIPAA and state laws.

“Companies, like Avalon, that retain consumers’ protected health information, have a duty to keep this data safe from unauthorized access,” said Attorney General Rosenblum. “Avalon dealt with the personal health-related information of some of our most vulnerable residents. Close to 2,000 Oregonians assumed—incorrectly—their information was safe with Avalon. Data breaches continue to be a problem in Oregon, and we are committed to working with companies to make sure they have the highest data privacy safeguards in place.”

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November 2022 Healthcare Data Breach Report

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November was a relatively quiet month for healthcare data breaches with 31% fewer breaches reported than the previous month. November’s total of 49 breaches of 500 or more records was also well below the 12-month average of 58 breaches a month. 643 healthcare data breaches have been reported to the HHS’ Office for Civil Rights so far in 2022, which makes this year the second worst year to date for healthcare data breaches.

Despite the fall in reported breaches, the number of breached records increased by 10% from October. November was the worst month of 2022 in terms of the number of breached healthcare records, with 6,904,441 records exposed or impermissibly disclosed – Well above the 12-month average of 3.99 million records a month. So far in 2022, 44,852,648 healthcare records have been breached.

Largest Healthcare Data Breaches in November

17 breaches of 10,000 or more records were reported to OCR in November, five of which involved more than half a million records and three incidents involved the impermissible disclosure of more than 1 million records. The largest data breach was a hacked network server at the Pennsylvania-based business associate Connexin Software – A provider of electronic medical records to pediatric practices. An unauthorized individual gained access to an offline set of patient data that was used for data conversion and troubleshooting. The records of 2,216,365 patients were exposed and potentially stolen.

The Indiana-based healthcare provider, Community Health Network, reported an impermissible disclosure of the protected health information of up to 1.5 million patients. Tracking code had been added to its website that resulted in patient information being transferred to third parties such as Meta and Google, without obtaining consent from patients or having a business associate agreement in place. Several healthcare providers have reported similar breaches this year, prompting OCR to issue a warning to HIPAA-regulated entities this month over the use of tracking technologies on websites and mobile applications.

Doctors’ Center Hospital in Puerto Rico suffered a ransomware attack that exposed the protected health information of up to 1,195,220 patients. Major ransomware attacks were also reported by the Michigan-based prosthetics and orthotics provider, Wright & Filippis, and Health Care Management Solutions in West Virginia.

Name of Covered Entity State Covered Entity Type Individuals Affected Type of Breach Cause of Data Breach
Connexin Software, Inc. PA Business Associate 2,216,365 Hacking/IT Incident Hacking of network server
Community Health Network, Inc. as an Affiliated Covered Entity IN Healthcare Provider 1,500,000 Unauthorized Access/Disclosure Website tracking code transmitted PHI to third parties
Doctors’ Center Hospital PR Healthcare Provider 1,195,220 Hacking/IT Incident Ransomware attack
Wright & Filippis LLC MI Healthcare Provider 877,584 Hacking/IT Incident Ransomware attack
Health Care Management Solutions, LLC WV Business Associate 500,000 Hacking/IT Incident Ransomware attack on subcontractor of CMS business associate
Gateway Rehabilitation Center PA Healthcare Provider 130,000 Hacking/IT Incident Hacking of network server
Mena Regional Health System AR Healthcare Provider 84,814 Hacking/IT Incident Hacking of network server
Dallam Hartley Counties Hospital District TX Healthcare Provider 69,835 Hacking/IT Incident Hacking of network server (data theft confirmed)
Consumer Directed Services in Texas, Inc. TX Healthcare Provider 56,728 Hacking/IT Incident Hacking incident at a business associate
Stanley Street Treatment and Resources, Inc. MA Healthcare Provider 45,785 Hacking/IT Incident Hacking of network server (data theft confirmed)
South Walton Fire District FL Healthcare Provider 25,331 Hacking/IT Incident South Walton Fire District
Rosenfeld VanWirt, PC PA Business Associate 18,719 Hacking/IT Incident Hacking incident affecting multiple affiliates of the Lehigh Valley Health Network
CCA Health Plans of California, Inc d/b/a CCA Health CA CA Health Plan 14,631 Hacking/IT Incident Hacking of network server (data theft confirmed)
CareFirst Administrators MD Health Plan 14,538 Hacking/IT Incident Phishing attack on business associate
Work Health Solutions CA Healthcare Provider 13,157 Hacking/IT Incident Phishing attack
New York-Presbyterian Hospital NY Healthcare Provider 12,000 Hacking/IT Incident Hacking of network server
Epic Management LLC TN Healthcare Provider 10,862 Hacking/IT Incident Unauthorized email account access

Causes of November Data Breaches

All but one of the 17 data breaches of 10,000 or more records were due to hacking incidents, several of which were ransomware attacks. Many hacking incidents involve ransomware, although it is common for HIPAA-regulated entities not to disclose the exact nature of these attacks. It is therefore difficult to determine the extent to which ransomware is used in cyberattacks on the healthcare industry. 5,374,670 records were exposed or stolen in these hacking incidents – 77.8% of all records breached in November. The average breach size was 134,367 records and the median breach size was 7,158 records.

There were 8 unauthorized access/disclosure incidents reported that involved the records of 1,521,788 individuals. The majority of those records were impermissibly disclosed by one healthcare provider. The average breach size was 190,224 records and the median breach size was 2,275 records.  There was also one theft incident reported involving the records of 7,983 individuals. In the majority of reported incidents, the breached protected health information was located on network servers. There were also 7 incidents involving breaches of email data, and four incidents involving electronic health records.

HIPAA-Regulated Entities Affected by Data Breaches

Healthcare providers were the worst affected entities in November, with 26 reported breaches, one of which occurred at a business associate but was reported by the healthcare provider. 6 data breaches were reported by health plans, with one of those breaches occurring at a business associate. Business associates self-reported 17 breaches in November. The pie chart below shows the breakdown of data breaches based on where they occurred, rather than the entities reporting the data breaches.

Healthcare Data Breaches by State

Data breaches were reported by HIPAA-regulated entities in 18 states and Puerto Rico. Pennsylvania was the worst affected state with 12 breaches, which involved 34.8% of the month’s breached records. 10 of those breaches were due to a hacking incident involving healthcare providers that are part of the Lehigh Valley Health Network. HIPAA-regulated entities in California reported 6 breaches, but these were relatively minor, only involving the protected health information of 41,382 patients.

State Breaches
Pennsylvania 12
California 6
Florida & New York 4
Texas 3
Arkansas, Connecticut, Indiana, Maryland, Massachusetts & Tennessee 2
Georgia, Michigan, New Jersey, Nevada, Oregon, Washington, West Virginia, and Puerto Rico 1

HIPAA Enforcement Activity in November

No civil monetary penalties or settlements were announced by OCR in November. Even so, 2022 has seen more HIPAA enforcement actions than in any other year since OCR was given the authority to enforce HIPAA compliance. The majority of the financial penalties in 2022 have been imposed for violations of the HIPAA right of access, and 55% of the year’s enforcement actions over HIPAA violations were on small healthcare providers.

In November, the state of Massachusetts announced that Aveanna Healthcare had been fined $425,000 for a breach of the PHI of 166,000 individuals, 4,000 of whom were Massachusetts residents. Aveanna Healthcare had suffered a phishing attack, with the Massachusetts Attorney General discovering a lack of safeguards such as multi-factor authentication and security awareness training.

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HHS Proposes New Rule to Implement HIPAA Standards for Healthcare Attachments and Electronic Signatures

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The Secretary of the Department of Health and Human Services (HHS) has proposed a new rule that will require the adoption of standards for healthcare attachments transactions and electronic signatures used in conjunction with those transactions to support healthcare claims and prior authorization transactions. The new rule will implement the requirements of the Administrative Simplification Requirements of HIPAA and the Affordable Care Act and will apply to all health plans, healthcare clearinghouses, and healthcare providers that currently lack an efficient, uniform method of sending attachments.

Currently, when making coverage decisions about healthcare services, health plans often require additional information that cannot be added to the specified fields or data elements of the adopted prior authorization request or healthcare claims transaction. Currently, this information is sent through the mail or by fax and is subject to manual processes that consume considerable time and resources. At present, there are no adopted HIPAA standards, implementation guides, or operating rules covering healthcare attachments or electronic signatures. The proposed rule will support electronic transmissions of this type of information.

“We believe that the health care industry has long anticipated the adoption of a set of HIPAA standards for the electronic exchange of clinical and administrative data to support electronic health care transactions, such as prior authorization of services and claims adjudication, and the standards we are proposing to adopt are an important step in reducing provider burden,” explained the HHS.

The Administrative Simplification Rules of HIPAA called for standard-setting organizations (SSOs) to develop standard code sets for electronic healthcare transactions, and some of these have previously been implemented as part of the Transactions and Code Sets final rule. A rule was also proposed in 2005 – The HIPAA Administrative Simplification: Standards for Electronic Health Care Claims Attachments; Proposed Rule – that required the adoption of standards for health care claims attachment standards for specific service areas, including ambulance services, clinical reports, emergency department, laboratory results, medications, and rehabilitation services; however, based on the comments received, the HHS chose not to finalize that rule.

The American Hospital Association (AHA) has announced its support for the proposed rule and the adoption of a new HIPAA standard for attachments and electronic signatures, as this will ease the burden on providers,/ Currently, the lack of a HIPAA standard for attachment transactions slows down claims processing, leading to delays to payments and patient care, and contributes to provider burnout. “The AHA supports establishing a standard for attachments to reduce the administrative burdens facing clinicians, and we look forward to providing robust commentary after analyzing the rule’s specifics,” said Terrence Cunningham, AHA director of administrative simplification policy.

The proposed rule is scheduled to be published in the Federal Register on December 21, 2022. Comments on the proposed rule must be submitted by March 21, 2022.

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Florida Primary Care Provider Fined $20,000 for HIPAA Right of Access Violation

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The Orlando, FL-based primary care provider, Health Specialists of Central Florida Inc. (HSCF), has paid a $20,000 financial penalty to settle a HIPAA Right of Access case with the HHS’ Office for Civil Rights.

OCR launched an investigation in response to a November 22, 2019, complaint from a woman who had not been provided with a copy of her deceased father’s medical records. The initial request was made in writing on August 29, 2019, and an Authorization for Release of Medical Record Information form was provided to HSCF along with a copy of the original Letters of Administration. It took multiple requests and almost 5 months for all of the requested medical records to be provided. The complete set of records was received by the woman on January 27, 2020.

The HIPAA Right of Access requires healthcare providers to provide a copy of the requested medical records within 30 days of the request being submitted. In certain circumstances, a 30-day extension is applicable. OCR determined that the delay in providing the requested records was a violation of the HIPAA Right of Access. In addition to paying a $20,000 financial penalty, HSCF has agreed to undertake a corrective action plan, which involves developing, implementing, and maintaining HIPAA Privacy Rule policies and procedures concerning the HIPAA Right of Access, distributing those policies and procedures to staff members, and providing training on those policies and procedures. HSCF will also be monitored by OCR for a period of two years from the date of the settlement.

“The right of patients to access their health information is one of the cornerstones of HIPAA, and one that OCR takes seriously. We will continue to ensure that health care providers and health plans take this right seriously and follow the law,” said OCR Director, Melanie Fontes Rainer, announcing the settlement. “Today’s announcement speaks to the importance of accessing information and regulated entities taking steps to implement procedures and workforce training to ensure that they are doing all they can to help patients access.”

The HIPAA Right of Access enforcement initiative was launched by OCR in the fall of 2019. Since then, $2,423,650 has been paid by healthcare providers to resolve HIPAA Right of Access violations in 42 enforcement actions. The fines range from $3,500 to $240,000.

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OCR Fines California Dental Practice for PHI Disclosures on Yelp

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The HHS’ Office for Civil Rights (OCR) has announced a settlement has been reached with a Californian dental practice to resolve multiple HIPAA violations that were identified during investigations of a complaint about impermissible disclosures of protected health information on the review platform Yelp.

New Vision Dental is a Californian general dental practice with offices in South Pasadena and Glendora. On November 29, 2017, OCR received a complaint alleging Dr. Brandon Au, owner and CEO of New Vision Dental, had posted responses to several reviews by patients on Yelp and frequently disclosed protected health information in the responses. In some of the posts, patients were identified and their full names were disclosed, when they had chosen to only use a moniker on the platform. Other information allegedly posted by Dr. Au included detailed information about the patients’ visits, treatment, and insurance, when that information had not been posted publicly by the patients.

The investigation into the impermissible disclosures also included an on-site visit to New Vision Dental. OCR’s investigators were able to confirm that Dr. Au had impermissibly disclosed the protected health information of patients on multiple occasions on Yelp, that the practice did not have the required content in its Notice of Privacy Practices, and had not implemented appropriate policies and procedures concerning protected health information, including the release of protected health information on social media platforms and in public places.

New Vision Dental chose to settle the case and paid a $23,000 financial penalty, has agreed to adopt a corrective action plan to address the aspects of non-compliance identified by OCR, and will be subject to monitoring by OCR for a period of two years.

“This latest enforcement action demonstrates the importance of following the law even when you are using social media.  Providers cannot disclose [the] protected health information of their patients when responding to negative online reviews. This is a clear NO.,” said OCR Director, Melanie Fontes Rainer. “OCR is sending a clear message to regulated entities that they must appropriately safeguard patients’ protected health information. We take complaints about potential HIPAA violations seriously, no matter how large or small the organization.”

This is the 21st financial penalty to be imposed by OCR in 2022 to resolve HIPAA violations – more than in any other year since OCR was given the authority to enforce HIPAA compliance.

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Telehealth Websites are Transmitting Sensitive Health Information to Big Tech Firms

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The private information of visitors to telehealth websites is being shared with big tech companies without user consent due to the use of tracking code snippets on the websites, according to a recent analysis by The Markup.

The websites of 50 direct-to-consumer telehealth companies were analyzed for the presence of third-party tracking code, 49 of which were found to have tracking code that transmitted the information of visitors to third parties, including Meta/Facebook and Google.

The study follows on from an analysis of the websites of the top 100 hospitals in the United States in the summer, which revealed one-third were using tracking code on their websites that was sending data to third parties without consent, valid HIPAA authorizations, or business associate agreements. In a handful of cases, the tracking code was added behind password-protected patient portals.

The latest study of telehealth websites included sites that collect highly sensitive information from visitors, such as the personal and health information of people suffering from Substance Abuse Disorder (SAD) who are seeking treatment. In many cases, the answers to medical questionnaires were also sent to big tech firms from questions relating to that health conditions, medical histories, and drug use.

The report, jointly published by The Markup and STAT, found that 49 of the 50 sites studied transmitted the URLs that an individual had visited, with 35 sites also transferring personal information such as email addresses, phone numbers, and full names. 19 sites recorded and transmitted when the user-initiated checkout, 13 sites sent the answers to questionnaires to third parties, 11 sites sent data confirming when the user had added an item to their cart (such as a treatment plan), and 9 sites transferred the date the user created the account.

The 13 sites that sent questionnaire data were of particular concern, as the answers were to health questions. That information was sent to a variety of companies, including Meta, Google, TikTok, Bing, Snap, Twitter, LinkedIn, and Pinterest. 25 sites told big tech firms when a user had added an item such as a prescription medication to their cart or checked out with a treatment plan.

All but one of the 50 websites transferred the URLs that a user had visited on the site. The websites provide health and treatment information, so the information detailed on certain pages may be for a specific health complaint. That information is then tied to an individual or a household via an IP address. Amazon Clinic was the only website that did not share website data with third parties.

Potential HIPAA Violations

Healthcare providers are HIPAA-covered entities and disclosures of protected health information are restricted by the HIPAA Privacy Rule. SUD information is also subject to the 45 CFR Part 2 Confidentiality of Substance Use Disorder (SUD) Patient Records regulations. Recently, the HHS’ Office for Civil Rights published guidance for HIPAA-regulated entities that confirmed that the use of third-party tracking code on websites violates HIPAA if that tracking code collects and transfers protected health information (PHI) to third parties unless the third party qualifies as a business associate under HIPAA. In such cases, a HIPAA-compliant business associate agreement is required before the code can be used. If a third party is not a business associate, HIPAA-compliant patient authorizations are required before that code can be used.

HIPAA applies to healthcare providers, health plans, healthcare clearing houses, and business associates of those entities, but many of the telehealth sites studied operate in a gray area, as the websites are not run by HIPAA-regulated entities or SUD treatment providers, therefore the HIPAA and Part2 regulations do not apply, even though the data collected is the same data that would be classed as PHI or SUD records if collected by a covered entity.

The information collected through these websites is passed on to HIPAA-covered entities and entities covered by Part 2, but the websites themselves are intermediaries and are therefore not bound by HIPAA or the Part 2 regulations. For example, one website run by Cerebral Inc. collected HIPAA-covered data but is not a HIPAA-covered entity. The website passes the information to Cerebral Medical Group, P.A., which is a HIPAA-covered entity. The transfer of data to the big tech firms occurred before the transfer to the Cerebral Medical Group, P.A.

WorkIt Health provides healthcare services including SUD treatment. Its website states in its Notice of Privacy Practices (NPP) that, “You are receiving this NPP because you are or intend to receive health care services from a Workit Health Clinic… Each Workit Health Clinic together designates themselves as a single Affiliated Covered Entity (“ACE”) for purposes of compliance with HIPAA.” However, the WorkIt website had trackers from Google, Facebook, Bing, and Twitter, and transferred URLs, personal information, and answers to questionnaires. The Markup contacted WorkIt Health regarding the findings of the study and WorkIt Health removed the tracking technology from its website and initiated an investigation into the privacy breach.

Visitors to These Websites Expect Privacy

Many healthcare organizations add these tracking technologies to their websites with good intentions, as the technology can provide data that can help to improve the user experience on websites and gauge the effectiveness of marketing campaigns, but the extent to which patient information is being shared is not fully understood.

Individuals who visit these websites are unlikely to be aware that any information they provide directly through answers on web forms and medical questionnaires, and indirectly via the sites they visit, is not being kept private and confidential, and that is a big concern. Many of these sites mention HIPAA and Part 2 in their NPPs, yet the extent to which those regulations apply is unclear. The Markup notes that at least 12 of the studied companies state that they are HIPAA compliant, but that does not necessarily mean that the information provided on the site is kept private or is indeed covered by HIPAA at the point it is collected.

The study shows that there is a trade-off when using these websites. Patients get convenience, but it may come at the expense of their privacy. There is a massive gap in HIPAA, which has not been updated to account for changes in how healthcare is being provided, and there are also suggestions of deceptive privacy practices, albeit in many cases unwittingly deceiving visitors about privacy.

“Sensitive health information is being shared, inadvertently, online every day. Hospital websites, online pharmacies, and health information sites, use a variety of applications (site analytics, links to social media, advertising) that collect and share site visitors’ data, including the healthcare terms and medical conditions that the user is searching,” Ian Cohen, CEO of LOKKER told HIPAA Journal. “For example, in LOKKER’s recent research of over 170,000 websites, we identified the Meta Pixel (Facebook) on over 40% of healthcare sites. Similar data was found about data being shared with TikTok, Snapchat, Pinterest, Microsoft, and Google, as well.” Cohen went on to say, “Not only are consumers and patients unaware that their information is being collected and shared, we believe that the website owners don’t fully understand the extent to which they are sharing data back to the social networks.”

The Markup explained that its researchers did not test all webpages on the sites of the telehealth providers, so the full extent to which tracking code has been used is not known. Tracking code can also be configured differently on different web pages.

It is also unclear what the big tech firms do with the transferred data. Several big tech firms state that they do not allow targeted advertising related to health conditions, although there are ways around that by using closely related terms. Meta, for instance, claims to strip out any data it should not receive and does not provide that information to third-party advertisers. The extent to which that occurs is also unclear. Meta is the subject of several lawsuits over this very matter, some of which allege health data has been used to serve targeted ads to patients whose information was collected through the Meta Pixel code snippet.

Steps Operators of Health Websites Should Take

The HHS’ Office for Civil Rights has made clear in its recent guidance that tracking technology on websites violates HIPAA and that this issue needs to be addressed immediately. HIPAA-regulated entities are required to report any HIPAA violations related to the use of third-party tracking technologies. So far, only a few HIPAA-regulated entities have done so, despite huge numbers having added tracking code to their websites. Even if the websites are not run by HIPAA-regulated entities, the operators of those websites have a moral responsibility to protect the privacy of their visitors with respect to their sensitive health information. Ian Cohen suggests all healthcare organizations should take the following actions:

  1. Take inventory of what data your websites and apps are collecting and if you’re violating your own privacy policy, other privacy laws, or your customers’ trust
  2. Know your partners and ensure they aren’t exploiting your customers’ information
  3. Build customer privacy ‘muscle’ by forming teams that include Marketing, IT, and Legal and establish routines for better data hygiene
  4. Don’t just ask for customer consent for bad practices, re-evaluate how you want to better serve your customers and build trust with every interaction by communicating clearly

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Amazon Ends Support for Third Party HIPAA-Eligible Alexa Skills

Posted by HIPAA Journal

Amazon has announced that it will stop support for third-party HIPAA-eligible skills for its Alexa devices, which means developers will no longer be able to create Alexa skills that collect data covered under the Health Insurance Portability and Accountability Act (HIPAA).

Amazon launched its HIPAA-compliant Alexa feature in April 2019, with skills added for patients of Atrium Health, Boston Children’s Hospital, Cigna, Express Scripts, Livongo, and Swedish Health Connect. The HIPAA compliance support meant healthcare organizations could use Alexa skills that collected HIPAA-protected data and could transmit that information in a HIPAA-compliant way. The decision has now been taken to end that support. HIPAA-eligible skills are now part of the Alexa Smart Properties for Healthcare business unit, and those skills can only be developed with first-party support.

“We regularly review our experiences to ensure we are investing in services that will delight customers. We are continuing to invest heavily in developing healthcare experiences with first and third-party developers, including Alexa Smart Properties for Healthcare,” explained Amazon in a statement.

Amazon has now written to all third-party developers to advise them that support for Alexa 3P HIPAA-eligible skills comes to an end this week and has advised them to remove their HIPAA-eligible skills from the skills store. Any developer that fails to remove the skill from the store will have it removed automatically on December 9, 2022, and the use of that skill will be suppressed. Any protected health information associated with that skill will be deleted and if any user attempts to use a HIPAA-eligible skill after it has been suppressed, they will receive a message that the skill is no longer supported. Amazon has confirmed that it will not be notifying users of the skills directly to advise them that support is ending.

The ending of support for third-party HIPAA-eligible skills does not mean that all healthcare-related Alexa skills will be suppressed, only those that collect protected health information. Any healthcare-related Alexa skills that do not collect data protected under HIPAA will be unaffected.

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