HIPAA Compliance News

NY Attorney General Fines Arc of Erie County $200,000 for Security Breach

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The Arc of Erie County has been fined $200,000 by the New York Attorney General for violating HIPAA Rules by failing to secure the electronic protected health information (ePHI) of its clients.

In February 2018, The Arc of Erie County, a nonprofit social services agency and chapter of the The Arc Of New York, was notified by a member of the public that some of its clients’ sensitive personal information was accessible through its website. The information could also be found through search engines.

The investigation into the security breach revealed sensitive information had been accessible online for two and a half years, from July 2015 to February 2018 when the error was corrected. The forensic investigation into the security incident revealed multiple individuals from outside the United States had accessed the information on several occasions. The webpage should only have been accessible internally by staff authorized to view ePHI and should have required a username and password to be entered before access to the data could be gained.

In total, 3,751 clients in New York had information such as their full name, address, phone number, age, date of birth, gender, race, primary diagnosis code, IQ, health insurance information, and Social Security number exposed. Those individuals were notified of the breach on March 9, 2018, the Department of Health and Human Services’ Office for Civil Rights was informed, and a breach report was submitted to the New York Attorney General’s office.

Under HIPAA, The Arc of Erie County is required to safeguard the ePHI of its clients and prevent that information from being accessed by unauthorized individuals. The investigation into the breach by the New York Attorney General’s office confirmed that HIPAA Rules had been violated as appropriate physical, technical, and administrative safeguards had not been implemented to ensure the confidentiality, integrity, and availability of ePHI. As a result of that failure, there had been an impermissible disclosure of clients ePHI.

“The Arc of Erie County’s work serves our most vulnerable New Yorkers – and that comes with the responsibility to protect them and their sensitive personal information,” said New York Attorney General Barbara. D. Underwood. “This settlement should provide a model to all charities in protecting their communities’ personal information online.”

In addition to paying a financial penalty of $200,000, The Arc of Erie County has agreed to adopt a Corrective Action Plan (CAP) that includes the requirement to conduct a thorough risk analysis to identify all security risks and vulnerabilities affecting its electronic equipment and data systems. A report of that assessment must be submitted to the New York Attorney General’s office within 180 days. Any vulnerabilities identified must be corrected through a HIPAA-compliance risk management process and policies and procedures must also be reviewed and revised, based on the findings of the risk analysis.

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Couple Sues McAlester Hospital Over Alleged Snooping and Impermissible Disclosure

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Following the accidental drowning of their adopted son, Denise and Wayne Russell were contacted by the child’s birth mother who made threats against their family.

The phone call from the birth mother came shortly after their son was admitted to McAlester Regional Health Center following a tragic swimming pool accident. Their 2-year old child had fallen into the pool after the gate to the pool area had been accidentally left open. The parents administered CPR at the scene until the paramedics arrived and the child was rushed to hospital where he was later confirmed to have died.

Shortly after their son died, the Russells received the telephone call from the birth mother. When asked how she knew about the accident and death of the child, she confirmed that she had been informed by the hospital. The birth month screamed at the Russells and made multiple threats, according to Denise Russell, including a threat to kill their other son. The situation became so bad that a protective order was filed against their son’s birth mother.

The Russells had taken care of their adopted son Keon since he was two weeks old and finalized the adoption in July 2015. Under the terms of the adoption, the birth mother terminated all of her parental rights. Even so, an employee at the hospital contacted the birth mother to alert her to the death of her son.

In the lawsuit the Russells claim that as a result of the impermissible disclosure of their son’s health information they have experienced “extreme emotional distress” from having to deal with the birth mother. The couple are seeking $150,000 in damages.

The call to the birth mother was made by an employee of the hospital, although according to the lawsuit that was not the only privacy violation and HIPAA violation that occurred. The lawsuit alleges multiple hospital workers accessed Keon’s medical records without authorization including workers in the hospital cafeteria.

One worker in the food service section had been legitimately been given access to the hospital’s EHR system. Access was required to check dietary requirements of patients and room numbers. It is alleged that that worker had been instructed to write down her login credentials on a sticky note and post them on a computer to allow others to be able to access the EHR system. Those credentials were allegedly used by other food service workers to access the child’s records, including labor and delivery department records.

An examination of the access logs showed that Keon’s medical records were accessed multiple times on the day of admission to the hospital using the food service worker’s credentials, even though the worker wasn’t on duty that day.

If the allegations are true, there have been multiple HIPAA violations, which have undoubtedly caused emotional distress for the parents; however, there is no private cause of action in HIPAA. It is not possible for an individual to sue a hospital for a HIPAA violation. Only state attorneys general and the Department of Health and Human Services’ Office for Civil Rights are permitted to bring legal action against healthcare organizations for HIPAA violations under federal law.

Instead, the lawsuit alleges the hospital was negligent for failing to protect Keon Russell’s medical records and meet HIPAA requirements and its own internal policies. It has also been alleged that Oklahoma’s medical records statutes were also been violated. A jury trial is expected to commence in January 2019.

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Lawmakers Accuse Oklahoma Department of Veteran Affairs of Violating HIPAA Rules

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The Oklahoma Department of Veteran Affairs has been accused of violating Health Insurance Portability and Accountability Act (HIPAA) Rules by three Democrat lawmakers, who have also called for two top Oklahoma VA officials to be fired over the incident.

The alleged HIPAA violation occurred during a scheduled internet outage, during which VA medical aides were prevented from gaining access to veterans’ medical records. The outage had potential to cause major disruption and prevent “hundreds” of veterans from being issued with their medications. To avoid this, the Oklahoma Department of Veteran Affairs allowed medical aides to access electronic medical records using their personal smartphones.

In a letter to Oklahoma Governor Mary Fallin, Reps. Brian Renegar, Chuck Hoskin, and David Perryman called for the VA Executive Director Doug Elliot and the clinical compliance director Tina Williams to be fired over the alleged HIPAA violation.

They claimed Elliot and Williams “have little regard for, and knowledge of, health care,” and allowing medical aides to access electronic medical records via personal smartphones was “a direct violation of HIPAA” and potentially placed millions of dollars of federal funding in jeopardy.

State CISO Mark Gower is adamant that HIPAA Rules were not violated. He explained that only a limited number of medical aides were allowed to access electronic health records using their smartphones, and access was only granted for a limited period of time until the problem was resolved. When the issue was over, access to medical records via smartphones was blocked. It was just a case of temporarily swapping a laptop or desktop computer for a smartphone.

Gower explained that accessing medical records using a smartphone did not result in medical records being copied to the devices. The medical records system does not create a cache or store any information locally. Gower also said that the records system and the smartphones met the VA’s security requirements.

The three lawmakers do not believe Gower’s explanation and claim that during the outage, employees at all seven of the state’s care centers were allowed to copy medical records onto their personal cellphones.

Doug Elliot said the medical aides were “the best and brightest” and that it was “Unfathomable that any of the med aides have disclosed that information to a third party.” He also said it was “unconscionable” for the legislators to suggest that VA employees had violated HIPAA Rules and patient privacy.

While Elliot does not believe the allegations have any merit, they are being taken seriously. Elliot has reported the matter to the state’s IT security team which will be conducting a full investigation. The Office of Management and Enterprise Services, which oversees IT for state agencies, is also looking into the allegations.

The legislators are not happy with the matter being investigated by a state agency and believe that this incident can only be impartially investigated by the federal government. The legislators have also reported the matter to the Department of Health and Human Services, the Department of Veteran Affairs, and U.S. Attorney Robert Troester.

“The federal government’s going to be the one to determine this, not some state agency helping another state agency wash their hands of what they did,” said Rep. Renegar.

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OCR Reminds Healthcare Organizations of HIPAA Rules for Disposing of Electronic Devices and Media

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In its July Cybersecurity Newsletter, the Department of Health and Human Services’ Office for Civil Rights has reminded HIPAA covered entities about HIPAA Rules for disposing of electronic devices and media.

Prior to electronic equipment being scrapped, decommissioned, returned to a leasing company or resold, all electronic protected health information (ePHI) on the devices must be disposed of in a secure manner.

HIPAA Rules for disposing of electronic devices cover all electronic devices capable of storing PHI, including desktop computers, laptops, servers, tablets, mobile phones, portable hard drives, zip drives, and other electronic storage devices such as CDs, DVDs, and backup tapes.

Healthcare organizations also need to be careful when disposing of other electronic equipment such as fax machines, photocopiers, and printers, many of which store data on internal hard drives. These devices in particular carry a high risk of a data breach at the end of life as they are not generally thought of as devices capable of storing ePHI.

If electronic devices are not disposed of securely and a data breach occurs, the costs to a healthcare organization can be considerable. Patients must be notified, it may be appropriate to pay for credit monitoring and identity theft protection services, and third-party breach response consultants, forensic investigators, and public relations consultants may need to be hired. OCR and/or state attorneys generals may conduct investigations and substantial financial penalties may be applied. Breach victims may also file lawsuits over the exposure of their financial information.

The costs all add up. The 2018 Cost of a Data Breach Study conducted by the Ponemon Institute/IBM Security highlighted the high cost of data breaches, in particular healthcare data breaches. The average cost of a breach of up to 100,000 records was determined to be $3.86 million. Healthcare data breaches cost an average of $408 per exposed record to mitigate, while the cost of data breaches of one million or more records was estimated to be between $40 million and $350 million.

It is not possible to ensure that all ePHI is disposed of securely if an organization does not know all systems and devices where PHI is stored. A full inventory of all equipment that stores ePHI must be created and maintained. When new equipment is purchased the list must be updated.

A full risk analysis should be conducted to determine the most appropriate ways to protect data stored on electronic devices and media when they reach the end of their lifespan.

Organizations must develop a data disposal plan that meets the requirements of 45 C.F.R. §164.310(d)(2)(i)-(ii). Paper, film, or other hard copy media should be shredded or destroyed such that the PHI cannot be read or otherwise cannot be reconstructed. OCR notes that “Redaction is specifically excluded as a means of data destruction.”

Electronic devices should be “cleared, purged, or destroyed consistent with NIST Special Publication 800-88 Revision 1, Guidelines for Media Sanitization,” to ensure that ePHI cannot be retrieved. If reusable media are in use, it is important to ensure that all data on the devices are securely erased prior to the devices being reused. Before electronic devices are scrapped or disposed of, asset tags and corporate identifying marks should be removed.

Third party contractors can be used to dispose of electronic devices, although they would be considered business associates and a business associate agreement would need to be in place. All individuals required to handle the devices must be aware of their responsibilities with respect to ePHI and its safe handling and should be subjected to workforce clearance processes.

Organizations should also consider the chain of custody of electronic equipment prior to destruction. Physical security controls should be put in place to ensure the devices cannot be stolen or accessed by unauthorized individuals and security controls should cover the transport of those devices until all data has been destroyed and is no longer considered ePHI.

The OCR newsletter, together with further information on secure disposal of ePHI and PHI, can be found on this link (PDF).

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NIST/NCCoE Release Guide for Securing Electronic Health Records on Mobile Devices

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The HIPAA Security Rule requires HIPAA-covered entities to ensure the confidentiality, integrity, and availability of electronic protected health information at all times. Healthcare organizations must ensure patients’ health is not endangered, their privacy is protected, and their identities are not compromised.

A range of physical, technical, and administrative controls can be implemented to secure ePHI on servers and desktop computers, but ensuring the same level of security for mobile devices can be a major challenge.

Mobile devices offer many benefits for healthcare providers. They can improve access to protected health information, ensure that data can be accessed anywhere, and they help healthcare providers improve coordination of care.

However, when ePHI is stored on mobile devices such as laptops, tablets and mobile phones, or is transmitted using those devices, it is particularly vulnerable. Mobile devices are easy to lose, are often stolen, and data transmitted through mobile devices can also be vulnerable to interception. In healthcare, mobile device security is a major concern.

Despite security concerns, the majority of healthcare providers are either using mobile devices or plan to implement a mobile device initiative. Mobile device usage by healthcare providers is expected to increase significantly over the next two years.

To help healthcare organizations take advantage of mobile devices without violating the HIPAA Security Rule and patient privacy, the National Institute of Standards and Technology (NIST) and The National Cybersecurity Center of Excellence (NCCoE) has produced a new guide – Securing Electronic Health Records on Mobile Devices.

The guide focuses on healthcare organizations that use mobile devices to review, update, and exchange electronic health records and addresses risks such as the loss or theft of devices, the hacking of devices, connecting to untrusted networks, and interaction between mobile devices and other systems.

The guide explains how ePHI can be secured on mobile devices without having a negative impact on delivering quality care and offers straightforward and detailed advice on securing electronic health records on mobile devices.

The guide explains how IT professionals can implement a security architecture to improve device security and better protect ePHI that is accessed, stored, or transmitted through mobile devices. The guide explains how commercially available and open-source technologies and tools can be deployed as part of a layered cybersecurity strategy to ensure ePHI can be accessed and shared securely.

The guide maps security characteristics to NIST standards and best practices and to the HIPAA Security Rule and includes a detailed architecture and capabilities that address security controls. The guide provides detailed information on automated configuration of security controls for ease of use and addresses both in-house and outsourced implementations.

The guide serves as a how-to guide to implement NIST’s security solution, or it can be taken as a starting point and customized to suit each individual organization. Since the guide is modular, healthcare providers can choose to implement the parts to suit their own needs.

”All healthcare organizations need to fully understand the potential risk posed to their information systems, the bottom-line implications of those risks, and the lengths that attackers will go to exploit them,” wrote NIST/NCCoE in the guide. “Assessing risks and making decisions about how to mitigate them should be continuous to account for the dynamic nature of business processes and technologies, the threat landscape, and the data itself. The guide describes [NIST’s] approach to risk assessment. We recommend that organizations implement a continuous risk management process as a starting point for adopting this or other approaches that will increase the security of EHRs. It is important for management to perform regular periodic risk review, as determined by the needs of the business.”

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HHS Secretary Alex Azar Promises Reforms to Federal Health Privacy Rules

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At a July 27 address at The Heritage Foundation, Secretary of the Department of Health and Human Services (HHS), Alex Azar, explained that the HHS will be undertaking several updates to health privacy regulations over the coming months, including updates to the Health Insurance Portability and Accountability Act (HIPAA) and 45 CFR Part 2 (Part 2) regulations.

The process is expected to commence in the next couple of months. Requests for information on HIPAA and Part 2 will be issued, following which action will be taken to reform both sets of rules to remove obstacles to value-based care and support efforts to combat the opioid crisis. Rule changes are also going to be made to remove some of the barriers to data sharing which are currently hampering efforts by healthcare providers to expand the use of electronic health technology.

These requests for information are part of a comprehensive review of current regulations that are hampering the ability of doctors, hospitals, and payers to improve the quality healthcare services and coordination of care while helping to reduce healthcare costs.

That process has already commenced with the Centers for Medicare & Medicaid Services (CMS) already having proposed one of the most fundamental changes to Medicare in recent years – A change to how physicians are paid for basic evaluation visits.

At present there are currently five tiers of payments for visits, with payments increasing for visits of increasing complexity. While this system makes sense, in practice in involves a considerable administrative burden on physicians, requiring them to justify why they are claiming for a visit at a higher tier. The CMS has proposed reducing the five tiers to two. That simple change is expected to save physicians more than 50 hours a year – more than a week’s work – with that time able to be diverted to providing better care to patients.

The CMS has also submitted a request for information of issues with Stark’s Law, which prevents physicians from referring patients to other physicians/practices with which they have a financial relationship, except in certain situations. Requests for information on HIPAA, Part 2, and the Anti-Kickback Statute will follow.

Healthcare providers that wish to voice their concerns about issues with HIPAA, Part 2, and the Anti-Kickback Statute should consider preparing comments and suggestions for policy updates to address those issues, ready for submission when the HHS issues its requests for information.

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Investigation Launched Over Snapchat Photo Sharing at M.M. Ewing Continuing Care Center

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Employees of a Canandaigua, NY nursing home have been using their smartphones to take and share images and videos of at least one resident and share the content with others via Snapchat – a violation of HIPAA and a serious violation of patient privacy.

The privacy breaches occurred at Thompson Health’s M.M. Ewing Continuing Care Center and involved multiple employees. Thompson Health has already taken action and has fired several workers over the violations. Now the New York Department of Health and the state attorney general’s office have got involved and are conducting investigations.

The state attorney general’s Deputy Press Secretary, Rachel Shippee confirmed to the Daily Messenger that an investigation has been launched, confirming “The Medicaid Fraud Control Unit’s mission includes the protection of nursing home residents from abuse, neglect and mistreatment, including acts that violate a resident’s rights to dignity and privacy.”

Thompson Health does not believe the images/videos were shared publicly and sharing was restricted to a group of employees at the care center. Thompson Health is contacting the families of the residents impacted by the breach to offer an apology.

This is not the first time that Thomson Health has discovered an employee had taken pictures and videos without people’s knowledge. In January, a camera was discovered in a unisex bathroom at Thompson Hospital. When the camera was taken down it was discovered that the memory card had been removed. The matter was reported to law enforcement although the employee responsible has not been identified.

M.M. Ewing Continuing Care Center is far from the only nursing home to discover that residents have been photographed and videoed without consent with videos and images shared on social media networks.

An investigation into the sharing of images of abuse of nursing home residents was launched by ProPublica in 2015. The investigation revealed the practice was commonplace, with several nursing home employees discovered to have performed similar acts. The investigation revealed there had been 22 cases of photo sharing on Snapchat and other social media platforms and 35 cases in total since 2012.

More recently, a nursing assistant at the Parkside Manor assisted-living facility in Kenosha, WI., was discovered to have taken photos of an Alzheimer’s patient and posted the images of SnapChat. When the violation was discovered, the nursing assistant was fired for the HIPAA breach.

The high number of cases involving these types of HIPAA violations prompted the CMS to take action in 2016. The CMS sent a memo to state health departments reminding them of their responsibilities to ensure nursing home residents were not subjected to any form of abuse, including mental abuse such as the taking of demeaning and degrading photos and videos and having the multimedia content shared on social media networks.

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Federal Court Rules in Favor of Main Line Health in Age Discrimination Case Over HIPAA Violation

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In 2016, Radnor, PA-based Main Line Health Inc., terminated an employee for violating Health Insurance Portability and Accountability Act (HIPAA) Rules by accessing the personal records of a co-worker without authorization on two separate occasions.

In such cases, when employee or patient records are accessed without authorization, employees face disciplinary action which can include termination. Gloria Terrell was one such employee who was terminated for violating company policies and HIPAA Rules. Main Line Health fired Terrell for “co-worker snooping.”

Terrell filed an internal appeal over her termination and maintained she accessed the records of a co-worker in order to obtain a contact telephone number. Terrell said she needed to contact the co-worker to make sure a shift would be covered, and this constituted a legitimate business reason for the access as she was unable to find the phone list with employees’ contact numbers.

After firing Terrell, Main Line Health appointed a significantly younger person to fill the vacant position. Terrell took legal action against Main Line Health in September 2016 claiming age discrimination. In the lawsuit, Terrell claimed Main Line Health had experienced similar snooping incidents in the past and failed to apply the same rules for younger employees. Terrell claimed she knew of three younger co-workers who were not terminated following the discovery of HIPAA violations. However, Terrell could not substantiate those assertions and all three employees denied they had been involved in any improper accessing of patient records.

Main Line Health explained appropriate training on HIPAA Rules and company policies had been provided to staff on multiple occasions and that there were established policies related to the protection of confidential employee and patient information. Those policies clearly state disciplinary action will be taken if company policies and HIPAA Rules are violated, which may include immediate discharge from employment.

Main Line Health maintained Terrell was terminated for a legitimate, non-discriminatory reason, and since the case failed to raise a triable issue, Main Line Health was entitled to a summary judgement.

Terrell’s case (Gloria Terrell v. Main Line Health, Inc., et al – Civil action No. 17-3102) went to federal court in the Eastern District of Pennsylvania. U.S District Court Judge Richard Barclay Surrick recently granted Main Line Health’s summary judgement, ruling Terrell failed to establish a viable age discrimination claim.

“In short, other than her own subjective beliefs, Plaintiff has offered no evidence from which a reasonable factfinder could conclude that Defendant’s proffered reason for terminating her lacks credibility. She has provided no evidence to support a finding of discrimination,” wrote Judge Barclay Surrick. “Although one may have reservations about the wisdom of terminating an employee with Plaintiff’s experience and tenure for electronically accessing a phone number that had already been made available to co-workers in paper form, it is not for this Court to sit as a super-personnel department that re-examines an entity’s business decisions.”

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Healthcare Worker Charged with Criminally Violating HIPAA Rules

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A former University of Pittsburgh Medical Center patient information coordinator has been indicted by a federal grand jury over criminal violations of HIPAA Rules, according to an announcement by the Department of Justice on June 29, 2018.

Linda Sue Kalina, 61, of Butler, Pennsylvania, has been charged in a six-count indictment that includes wrongfully obtaining and disclosing the protected health information of 111 patients.

Kalina worked at the University of Pittsburgh Medical Center and the Allegheny Health Network between March 30, 2016 and August 14, 2017. While employed at the healthcare organizations, Kalina is alleged to have accessed the protected health information (PHI) of those patients without authorization or any legitimate work reason for doing so.

Additionally, Kalina is alleged to have stolen PHI and, on four separate occasions between December 30, 2016, and August 11, 2017, disclosed that information to three individuals with intent to cause malicious harm.

Kalina was arrested following an investigation by the Federal Bureau of Investigation. The case was taken up by the Department of Justice and she is being prosecuted by Assistant United States Attorney, Carolyn Bloch, on behalf of the federal government.

If found guilty on all counts, Kalina faces up to 11 years in jail and could be ordered to pay a fine of up to $350,000. The sentence will be dictated by the seriousness of the offenses and any prior criminal history.

The Department of Justice is taking a hard line on individuals who violate HIPAA Rules and impermissibly access and disclose PHI with malicious intent. There have been several other cases in 2018 that have seen former healthcare workers indicted for criminal HIPAA violations, with three cases resulting in imprisonment.

In June 2018, a former employee of the Veteran Affairs Medical Center in Long Beach, CA, Albert Torres, 51, was sentenced to serve 3 years in jail for the theft of protected health information and identity theft. Torres pleaded guilty to the charges after law enforcement officers discovered the records of 1,030 patients in his home.

In April, 2018, former receptionist at a New York dental practice, Annie Vuong, 31, was sentenced to serve 2 to 6 years in jail for stealing the PHI of 650 patients and providing that information to two individuals who used the data to rack up huge debt’s in patients’ names.

In February, a former behavioral analyst at the Transformations Autism Treatment Center in Bartlett, TN, Jeffrey Luke, 29, was sentenced to 30 days in jail, 3 years supervised release, and was ordered to pay $14,941.36 in restitution after downloading the PHI of 300 current and former patients onto his personal computer.

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