HIPAA Compliance News

OCR Plans to Share HIPAA Violation Settlements with Breach Victims

Posted by HIPAA Journal

The Health Information Technology for Economic and Clinical Health (HITECH) Act was enacted in 2009 and includes a provision that calls for the Department of Health and Human Services to share a percentage of HIPAA settlements with victims of HIPAA violations and data breaches.

This month has seen some progress in that area. The Department of Health and Human Services’ Office for Civil Rights has announced it is planning on issuing an advance notice of proposed rulemaking in November about sharing a percentage of the fines it collects through its HIPAA enforcement activities with the victims of data breaches.

OCR officials have previously made it clear that steps will be taken to meet the requirements of this HITECH provision, but little progress has been made. This is not the first time that OCR has announced it plans to issue an advance notice of proposed rulemaking on the matter only for the advance notice of proposed rulemaking to be delayed.

If OCR follows through on its plans this fall, feedback will be sought from the public and industry stakeholders on how it can achieve that aim and the methodology that should be employed.

One thing is clear, such a step would certainly be a challenge. How would OCR decide on the percentage of any HIPAA settlement or fine that should be paid to the victims of HIPAA violations and data breaches and how would it be possible to share the money fairly between affected patients?

Should every individual affected by a violation/breach receive an equal share of any settlement or should the amount received be determined by the type of PHI that has been exposed or the level of harm caused? In the case of the latter, how would it be possible to quantify harm and ensure appropriate payments are made?

Settlements to resolve HIPAA violations are not only determined by the number of individuals affected and the severity of the violation. OCR also takes the ability of a covered entity to pay a penalty into account. The amount paid to breach victims of virtually carbon-copy HIPAA violations at different covered entities would likely be vastly different.

The more people impacted by a data breach, the less the share would likely be for affected individuals. For example, New York Presbyterian Hospital settled HIPAA violations with OCR for $2,200,000 in 2016 and MAPFRE Life Insurance Company of Puerto Rico settled its case with OCR for the same amount. The NYPH settlement resolved violations that affected a handful of patients, whereas the MAPFRE breach impacted 2,200 individuals. The relative payments if the percentage was fixed would differ considerably.

Potentially, HIPAA financial penalties could significantly increase if a percentage of funds are given to breach victims to ensure patients get a reasonable payment, especially for HIPAA violations and data breaches where considerable harm has been caused – The unauthorized disclosure of the HIV positive status of a patient for example or breaches where patients’ PHI has clearly been obtained by identity thieves and used for malicious purposes.

The methodology used would have to be very carefully considered to ensure funds are shared fairly. Even if the advance notice of proposed rulemaking is issued in November, it is likely to be some time before a fair methodology is decided and any payments are made.

OCR has also proposed other rules that could see HIPAA Rules modified in the near future. OCR has proposed a change to the HIPAA Privacy Rule provision requiring healthcare providers to obtain acknowledgment from patients of receipt of the notice of privacy practices. Currently healthcare providers are required to make a good faith effort to obtain written acknowledgements from patients, or must explain why acknowledgements have not been obtained. That requirement could well be removed.

Feedback will also be sought from the public on modifications to the HIPAA Privacy Rule to incorporate the accounting of protected health information disclosures of the HITECH Act, which has not yet been implemented due to the perceived cost to healthcare organizations.

OCR also proposes a change to the HIPAA Privacy Rule – Presumption of Good Faith of HealthCare Providers – that would “clarify that healthcare providers are presumed to be acting in the individual’s best interests when they share information with an incapacitated patient’s family members unless there is evidence that a provider has acted in bad faith.”

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Jury Must Decide Whether Psychiatrist was Sacked for a HIPAA Violation

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Boston-based Steward Healthcare System terminated a psychiatrist for violating HIPAA Rules but must now prove to a jury that was the case. The psychiatrist claims he was fired in retaliation over taking extended disability leave, not for a HIPAA violation.

Dr. Alexander Lipin contracted pneumonia and requested extended disability leave under the Family Medical Leave Act (FMLA). Extended leave was granted by Steward Healthcare System and Lipin was due to return to work on March 2, 2016. However, Lipin was fired on February 23 while still on disability leave over a HIPAA violation, which his attorney, Kavita M. Goyal, claims was used as an excuse for the termination.

Steward Healthcare System alleged Lipin had violated HIPAA Rules by providing patients’ protected health information to law enforcement. According to Steward Medical Group President, George Clairmont, the decision had been taken to fire Lipin over the HIPAA violation before he took leave. Clairmont also stated Lipin was fired after it was discovered he was working for Anna Jaques Hospital while on leave.

Lipin sued Steward Medical Group inc., Steward Healthcare System, and Holy Family Hospital over his dismissal. The case was removed to federal court in November 2016, and Steward Healthcare filed a motion for a summary judgement on the case.

Massachusetts federal judge, Leo. T. Sorokin, ruled that the case should proceed to trial to establish the facts surrounding the dismissal. Steward Healthcare will now be required to convince a jury that the decision to fire the psychiatrist was based on the HIPAA violation and not the discovery that Lipin was working for another hospital while on disability leave.

Clairmont maintains the decision to fire Lipin was made before he went on leave on January 26. The HIPAA violation was discovered on January 16 and the decision was taken to fire Lipin. Lipin was not fired immediately as advice was sought from the company’s legal department over the nature of the termination – whether it should be for cause, effective immediately, or without cause, in which case 90 days’ notice or pay in lieu of notice would be required.

Lipin took leave and notified Steward Healthcare on February 5 that he would remain on leave until February 17, and on February 12 told Steward Healthcare that he would need to remain on leave until February 23. On February 20, leave was extended until March 2.

On February 13, Steward Healthcare learned that Lipin was continuing to work for Anna Jaques Hospital in the mornings while on leave, and Lipin was terminated ten days later on February 23.

While Judge Sorokin explained that no evidence exists in the record that directly contradicts Clairmont’s account, “A factfinder could reasonably choose to disregard Clairmont’s testimony in light of the lack of any action taken by Steward to arrange coverage for Lipin’s patients or to terminate Lipin’s employment before February 13, especially when this inaction is contrasted with Steward’s concerted steps to fire Lipin after February 13,” wrote Judge Sorokin, “These circumstances could support a reasonable inference that Steward decided to fire Lipin only after Clairmont learned of Lipin’s work at Anna Jaques.”

An initial pre-trail conference has been scheduled for May 30, 2018.

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GAO: Medical Records Can be Difficult and Expensive to Obtain

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A recent audit conducted by the Government Accountability Office (GAO) has shown patients still face many challenges obtaining copies of their health information and healthcare providers and insurers are struggling to meet HIPAA requirements – and in some cases – are breaching HIPAA Rules.

A 21st Century Cures Act provision required GAO to conduct a study on patient access to medical records. The audit involved interviews with stakeholders, vendors, provider organizations, patient advocates, and state and HHS officials. The audit was conducted in four states – Ohio, Kentucky, Rhode Island and Wisconsin – which were chosen, in part, due to the range of fees charged for providing patients with copies of their medical records.

Under HIPAA, patients are permitted to request copies of their health records from their providers. Patients can request their health records in paper or digital form and the requests must be processed within 30 days. HIPAA-covered entities are allowed to charge a reasonable, cost-based fee for providing patients with copies of their health data.

Patients obtain copies of their health information for several reason: To take a more active role in their own healthcare, to take their medical records to new providers, to resolve disputes with their insurers, to provide to lawyers, or for disability claims.

Patients also make requests for their records to be forward on to another person or entity by their provider, such as when they want a second opinion from another physician. Third parties may also be instructed by patients to obtain copies of their health records – a lawyer for example.

The GAO audit determined that the fees charged by providers varied considerably from state to state and for different types of request.

Some states have established fee schedules, formulas and limits for allowable fees. Three of the states – Ohio, Rhode Island, and Wisconsin – have established per-page fee amounts and different rates for obtaining medical images such as copies of X-rays. Ohio has established a per-page fee amount for third party requests, Rhode Island has a maximum fee for providers that use an EHR for patient and patient-directed requests, while Kentucky allows patients to obtain one free copy of their medical records and sets a maximum charge of $1 per page for any additional copies.

While HIPAA stipulates that providers can only charge a reasonable, cost-based fee for patient requests and patient-directed requests, those limits do not apply to third party requests for copies of data, and the charges are often considerably higher.

Excessive Fees Charged for Providing Copies of Health Information

In 2016, the Department of Health and Human Services’ Office for Civil Rights issued guidance for HIPAA-covered entities on the fees that could be charged for providing patients with copies of their health information.  Even so, some providers are not following HIPAA Rules.

In the GAO report, examples are provided of the excessive fees that have been charged. One patient was charged a fee of $148 for a single PDF of their medical records, and two patients were each charged more than $500 for a single request to obtain a copy of their medical records. One patient was charged a retrieval fee by a release-of-information (ROI) vendor for a copy of her health records, even though such fees are not permitted under HIPAA. There have also been cases of providers charging annual subscription fees for providing access to medical records.

One problem faced by patients whose medical conditions have required many visits to physicians is the amount of data stored by their providers. Their health records span many pages and fees are charged per page. That can make obtaining copies of health records prohibitively expensive.

The GAO report indicates many patients have made attempts to obtain copies of their medical records from their providers but cancelled the requests when they discovered to cost of doing so. There have been cases where providers have refused patients who have requested copies of their health records and patients have failed to challenge their providers.

The report made it clear that even though efforts have been made to improve understanding of HIPAA Rules, many patients are still unsure of their rights under HIPAA.

Healthcare Organizations Face Major Challenges Providing Access to Health Records

It is not only a challenge for patients to obtain their health records. Many providers also face challenges finding and retrieving information and processing the requests. Often, patients’ data are stored in digital format and on paper/film. Paper records may be stored in different locations and digital records stored in multiple EHRs.

Many providers find it difficult to allocate the necessary resources to the task of providing copies of medical records to patients and staff struggle to find the time to process requests due to extremely busy workloads.

Thorough checks must be made of the records to make sure patients are only provided with data from their own records. Sometimes, the process of transferring data from physical records to digital versions result in different patient records being merged.

There are also security challenges. While HIPAA allows patients to receive digital copies of their data, on a memory stick for example, plugging in such a device could introduce a malware infection.

Some healthcare providers have eased the strain by making patient health information available through patient portals. This has helped reduce the number of requests for providing copies of health data. Unfortunately, patient portals do not contain entire health records and patients may not be able to get the information they need.

Interviews with OCR officials revealed hundreds of complaints have been submitted by patients who have experienced difficulties accessing their medical records. The most common complaints are the failure of a provider to process requests for copies of health information within 30 days, excessive fees for the information, the failure to respond to requests to send health records to caregivers and family members, and denying requests from parents to obtain copies of their children’s medical records.

OCR is currently considering whether any further guidance is required to clarify allowable fees under HIPAA Rules, further to the guidance it issued on the matter in 2016.

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DoD IG Discovers Serious Flaws in Navy and Air Force EHR and Security Systems and Potential HIPAA Violations

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A Department of Defense Inspector General (DoDIG) audit of the electronic health record (EHR) and security systems at the Defense Health Agency (DHA), Navy, and Air Force has uncovered serious security vulnerabilities that could potentially be exploited to gain access to systems and protected health information (PHI).

This is the second DoDIG report from recent audits of military training facilities (MTFs). The first report revealed the DHA and Army had failed to consistently implement security protocols to safeguard EHRs and systems that stored, processed, or transmitted PHI. The latest report, which covers the DHA, Navy, and Air Force, has revealed serious vulnerabilities in 11 different areas.

Inconsistency of implementing security protocols to protect EHRs and PHI, and the ineffective administrative, technical, and physical safeguards deployed constitute violations of Health Insurance Portability and Accountability Act (HIPAA) Rules. Those violations could attract financial penalties of up to $1.5 million per violation category.

The DoDIG visited three Navy and two Air Force facilities and assessed 17 information systems across the five locations.

  • Naval Hospital Camp Pendleton, Camp Pendleton, CA
  • San Diego Naval Medical Center, San Diego, CA
  • S. Naval Ship Mercy, San Diego, CA
  • 436th Medical Group, Dover, DW
  • Wright-Patterson Medical Center, Dayton, OH

3 DoD EHR systems, 3 modified DoD EHR systems, 9 service-specific systems, and 2 DHA-owned systems were assessed.

There were instances where vulnerabilities had gone undetected and many cases of detected vulnerabilities failing to be addressed in a reasonable time frame. In its report, DoDIG said the audit at the 436th Medical Group revealed 342 of the 1,430 vulnerabilities identified in May had not been addressed and appeared in the vulnerability scan conducted in June.

The reason for the failure to consistently implement security protocols and address vulnerabilities differed at each audited site, but were largely due to a lack of resources, a lack of guidance, system incompatibility, and vendor limitations.

Security issues were identified in the following areas:

  • Failure to consistently implement multi-factor authentication
  • Failure to configure passwords to meet DoD length/complexity requirements
  • Failure to address known network vulnerabilities
  • Failures to set privileges based on users’ assigned duties
  • Failure to configure controls to lock EHRs after 15 minutes of inactivity
  • Failure to review system activity reports to identify suspicious activities and access attempts
  • Failure to develop standard operating procedures and manage system access
  • Failure to implement appropriate and adequate security protocols to protect ePHI and PHI from unauthorized access
  • Failure to maintain an inventory of all service-specific systems that stored, processed, or transmitted PHI
  • Failure to develop and maintain privacy impact assessments

“Without well-defined, effectively implemented system security protocols, the DHA, Navy, and Air Force compromised the integrity, confidentiality, and availability of PHI”, wrote DoDIG in its report. “Security protocols, when not applied or ineffective, increase the risk of successful cyberattacks; system and data breaches; data loss and manipulation; and unauthorized disclosures of PHI.”

DoDIG made several recommendations to improve security which included configuring systems used to store, process, or transmit ePHI to lock automatically after 15 minutes of inactivity; the development of an oversight plan to ensure recommendations are applied across all locations; actions to be taken to address vulnerabilities in a timely manner; implement procedures to only grant access to systems used to store, process, and transmit Phi based on users’ responsibilities.

DoDIG also recommended the Surgeons General for the Departments of the Navy and Air Force coordinate with the Navy Bureau of Medicine and Surgery and the Air Force Medical Service to assess whether the issues discovered exist at other service-specific military training facilities.

On the whole, the recommendations were accepted, although at certain locations some recommendations remain unresolved and require additional comments.

The DHA Director agreed that the DHA could potentially configure systems to lock after 15 minutes of inactivity, but did not provide assurances that its systems would be changed to incorporate that control.

The Executive Director for the Naval Medical Center, San Diego disagreed with one recommendation. The Military Sealift Command Chief of Staff partly agreed with two recommendations and disagreed with one, but suggested additional controls and alternate actions that could be taken to address all recommendations for the USNS Mercy.

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Class Action Lawsuit Claims UnityPoint Health Mislead Patients over Severity of Phishing Attack

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A class action lawsuit has been filed in response to a data breach at UnityPoint Health that saw the protected health information (PHI) of 16,429 patients exposed and potentially obtained by unauthorized individuals.

As with many other healthcare data breaches, PHI was exposed as a result of employees falling for phishing emails. UnityPoint Health discovered the security breach on February 15, 2018 and sent breach notification letters to affected patients two months later, on or around April 16, 2018.

HIPAA-covered entities have up to 60 days following the discovery of a data breach to issue notifications to patients. Many healthcare organizations wait before issuing breach notifications and submitting reports of the incident to the Department of Health and Human Services’ Office for Civil Rights.

Waiting for two months to issue notifications to breach victims could be viewed as a violation of HIPAA Rules. While the maximum time limit for reporting was not exceeded, the HIPAA Breach Notification Rule requires notifications to be sent ‘without unnecessary delay.’ The HHS’ Office for Civil Rights has taken action over delayed breach notifications in the past, although no penalties have been issued when notification letters have been sent within 60 days of the discovery of a breach.

The notification letters explained to patients that some of their health information had been exposed. The substitute breach notice posted on the UnityPoint Health website in April said the types of information potentially accessed by the attackers included “patient names and one or more of the following: dates of birth, medical record numbers, treatment information, surgical information, diagnoses, lab results, medications, providers, dates of service and/or insurance information. For a limited number of impacted individuals, information that may have been viewed included Social Security Numbers or other financial information.”

UnityPoint Health told patients no reports had been received to suggest that their PHI had been accessed, stolen, or misused.

Patients were encouraged to “remain vigilant in reviewing your account statements for fraudulent or irregular activity”, although the burden of protecting against identity theft and fraud was passed on to patients. Affected individuals were not offered credit monitoring and identity theft protection services nor were they protected by an insurance policy covering misuse of their data.

The lawsuit was filed on May 4 by attorney Robert Teel against Iowa Health Systems Inc., the company that runs UnityPoint Health. Yvonne Mart Fox, of Middleton, WI, lead plaintiff in the class action lawsuit, has accused UnityPoint Health of delaying reporting the breach to regulators and patients. She also alleges UnityPoint Health “misrepresented the nature, breadth, scope, harm, and cost of the privacy breach.”

Fox claims she has suffered sleep deprivation as a direct result of the breach and experiences daily anger. She also claims to have had an increase in the number of automated calls to her cellphone and landline in 2018 and an increase in marketing and other spam emails, which have been attributed to the theft of her contact information.

Fox and other class members are seeking compensatory, punitive, and other damages.

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Massachusetts Physician Convicted for Criminal HIPAA Violation

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Criminal penalties for HIPAA violations are relatively rare, although the Department of Justice does pursue criminal charges for HIPAA violations when there has been a serious violation of patient privacy, such as an impermissible disclosure of protected health information for financial gain or malicious purposes.

One such case has resulted in two criminal convictions – a violation of the Health Insurance Portability and Accountability Act and obstructing a criminal healthcare investigation.

The case relates to the DOJ investigation of the pharmaceutical firm Warner Chilcott over healthcare fraud. In 2015, Warner Chilcott plead guilty to paying kickbacks to physicians for prescribing its drugs and for manipulating prior authorizations to induce health insurance firms to pay for prescriptions. The case was settled with the DOJ for $125 million.

Last week, a Massachusetts gynecologist, Rita Luthra, M.D., 67, of Longmeadow, was convicted for violating HIPAA by providing a Warner Chilcott sales representative with access to the protected health information of patients for a period of 10 months between January 2011 and November 2011.

The access to PHI allowed patients with certain health conditions to be targeted by the firm and facilitated the receipt of prior authorizations for Warner Chilcott pharmaceutical products. When interviewed by federal agents about her relationship with Warner Chilcott, Luthra provided false information and obstructed the investigation.

Luthra had been previously charged for receiving kickbacks from Warner Chilcott in the form of fees for speaker training and speaking at educational events that did not take place. Luthra had accepted payments of approximately $23,500. The DOJ eventually dropped the charges, although the case against the physician continued to be pursued, resulting in the two convictions.

Luthra faces jail time and a substantial fine. The maximum penalty for the HIPAA violation is a custodial sentence of no more than 1 year, one year of supervised release, and a maximum fine of $50,000. The maximum penalty for obstructing a criminal health investigation is no more than 5 years in jail, three years of supervised release, and a fine of up to $250,000.

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OCR Encourages Healthcare Organizations to Conduct a Gap Analysis

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In its April 2018 cybersecurity newsletter, OCR draws attention to the benefits of performing a gap analysis in addition to a risk analysis. The latter is required to identify risks and vulnerabilities that could potentially be exploited to gain access to ePHI, while a gap analysis helps healthcare organizations and their business associates determine the extent to which an entity is compliant with specific elements of the HIPAA Security Rule.

The Risk Analysis

HIPAA requires covered entities and their business associates to perform a comprehensive, organization-wide risk analysis to identify all potential risks to the confidentiality, integrity, and availability of ePHI – 45 CFR § 164.308(a)(1)(ii)(A).

If a risk analysis is not performed, healthcare organizations cannot be certain that all potential vulnerabilities have been identified. Vulnerabilities would likely remain that could be exploited by threat actors to gain access to ePHI.

While HIPAA does not specify the methodology that should be used when conducting risk analyses, OCR explained in its newsletter that risk analyses must contain certain elements:

  • A comprehensive assessment of all risks to all ePHI, regardless of where the data is created, received, maintained, or transmitted, or the source or location of ePHI.
  • All locations and information systems where ePHI is created, received, maintained, or transmitted must be included in the risk analysis, so an inventory should be created that includes all applications, mobile devices, communications equipment, electronic media, networks, and physical locations in addition to workstations, servers, and EHRs.
  • The risk analysis should cover technical and non-technical vulnerabilities, the latter includes policies and procedures, with the former concerned with software flaws, weaknesses in IT systems, and misconfigured information systems and security solutions.
  • The effectiveness of current controls must be assessed and documented, including all security solutions such as AV software, endpoint protection systems, encryption software, and the implementation of patch management processes.
  • The likelihood that a specific threat will exploit a vulnerability and the impact should a vulnerability be exploited must be assessed and documented.
  • The level of risk should be determined for any specific threat or vulnerability. With a risk level assigned, it will be easier to determine the main priorities when mitigating risks through the risk management process.
  • The risk analysis must be documented in sufficient detail to demonstrate that a comprehensive, organization-wide risk analysis has been conducted, and that the risk analysis was accurate and covered all locations, devices, applications, policies, and procedures involving ePHI. OCR will request this documentation in the event of an investigation or compliance audit.
  • A risk analysis is not a one-time event to ensure compliance with the HIPAA Security Rule – It must part of an ongoing process for continued compliance. The process must be regularly reviewed and updated, and risk analyses should be performed regularly. HIPAA does not stipulate how frequently a full or partial risk analysis should be performed. OCR suggests risk analyses are most effective when integrated into business processes.

Once a risk analysis has been performed, all risks and vulnerabilities identified must be addressed through a HIPAA-compliant security risk management process – 45 CFR § 164.308(a)(1)(ii)(B) – to reduce those risks to a reasonable and appropriate level.

Guidance on conducting an organization-wide risk analysis can be found on this link (HHS)

The Gap Analysis

A gap analysis is not a requirement of HIPAA Rules, although it can help healthcare organizations confirm that the requirements of the HIPAA Security Rule have been satisfied.

A gap analysis can be used as a partial assessment of an organizations compliance efforts or could cover all provisions of the HIPAA Security Rule.  Several gap analyses could be performed, each assessing a different set of standards and implementation specifications of the HIPAA Security Rule.

The gap analysis can give HIPAA-covered entities and their business associates an overall view of their compliance efforts, can help them discover areas where they are yet compliant with HIPAA Rules, and identify any gaps in the controls that have already been implemented.

Note that a gap analysis is not equivalent to a risk analysis, as it does not cover all possible risk to the confidentiality, integrity, and availability of ePHI as required by 45 C.F.R. §164.308(a)(1)(ii)(A).

OCR offers the following example of a simple gap analysis:

Source: OCR

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How to Defend Against Insider Threats in Healthcare

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One of the biggest data security challenges is how to defend against insider threats in healthcare. Insiders are responsible for more healthcare data breaches than hackers, making the industry unique.

Verizon’s Protected Health Information Data Breach Report highlights the extent of the problem. The report shows 58% of all healthcare data breaches and security incidents are the result of insiders.

Healthcare organizations also struggle to detect insider breaches, with many breaches going undetected for months or even years. One healthcare employee at a Massachusetts hospital was discovered to have been accessing healthcare records without authorization for 14 years before the privacy violations were detected, during which time the records of more than 1,000 patients had been viewed.

Healthcare organizations must not only take steps to reduce the potential for insider breaches, they should also implement technological solutions, policies, and procedures that allow breaches to be detected rapidly when they do occur.

What are Insider Threats?

Before explaining how healthcare organizations can protected against insider threats, it is worthwhile covering the main insider threats in healthcare.

An insider threat is one that comes from within an organization. That means an individual who has authorization to access healthcare resources, which includes EMRs, healthcare networks, email accounts, or documents containing PHI. Resources can be accessed with malicious intent, but oftentimes mistakes are made that can equally result in harm being caused to the organization, its employees, or its patients.

Insider threats are not limited to employees. Any individual who is given access to networks, email accounts, or sensitive information in order to complete certain tasks could deliberately or accidentally take actions that could negatively affect an organization. That includes business associates, subcontractors of business associates, researchers, volunteers, and former employees.

The consequences of insider breaches can be severe. Healthcare organizations can receive heavy fines for breaches of HIPAA Rules and violations of patient privacy, insider breaches can damage an organization’s reputation, cause a loss of patient confidence, and leave organizations open to lawsuits.

According to the CERT Insider Threat Center, insider breaches are twice as costly and damaging as external threats. To make matters worse, 75% of insider threats go unnoticed.

Insider threats in healthcare can be split into two main categories based on the intentions of the insider: Malicious and non-malicious.

Malicious Insider Threats in Healthcare

Malicious insider threats in healthcare are those which involve deliberate attempts to cause harm, either to the organization, employees, patients, or other individuals. These include the theft of protected health information such as social security numbers/personal information for identity theft and fraud, the theft of data to take to new employers, theft of intellectual property, and sabotage.

Research by Verizon indicates 48% of insider breaches are conducted for financial gain, and with healthcare data fetching a high price on the black market, employees can easily be tempted to steal data.

A 2018 Accenture survey conducted on healthcare employees revealed one in five would be prepared to access and sell confidential data if the price was right. 18% of the 912 employees surveyed said they would steal data for between $500 and $1,000.

Alarmingly, the survey revealed that almost a quarter (24%) of surveyed healthcare employees knew of someone who had stolen data or sold their login credentials to an unauthorized outsider.

Disgruntled employees may attempt to sabotage IT systems or steal and hold data in case they are terminated. However, not all acts of sabotage are directed against employers. One notable example comes from Texas, where a healthcare worker used hospital devices to create a botnet that was used to attack a hacking group.

Non-Malicious Insider Threats in Healthcare

The Breach Barometer reports from Protenus/databreaches.net break down monthly data breaches by breach cause, including the number of breaches caused by insiders. All too often, insiders are responsible for more breaches than outsiders.

Snooping on medical records is all too common. When a celebrity is admitted to hospital, employees may be tempted to sneak a look at their medical records, or those of friends, family members, and ex-partners. The motivations of the employees are diverse. The Verizon report suggests 31% of insider breaches were employees accessing records out of curiosity, and a further 10% were because employees simply had access to patient records.

Other non-malicious threats include the accidental loss/disclosure of sensitive information, such as disclosing sensitive patient information to others, sharing login credentials, writing down login credentials, or responding to phishing messages.

The largest healthcare data breach in history – the theft of 78 million healthcare records from Anthem Inc.- is believed to have been made possible because of stolen credentials.

The failure to ensure PHI is emailed to the correct recipient, the misdirection of fax messages, or leaving portable electronic devices containing ePHI unattended causes many breaches each year. The Department of Health and Human Services’ Office for Civil Rights’ breach portal or ‘Wall of Shame’ is littered with incidents involving laptops, portable hard drives, smartphones, and zip drives that have stolen after being left unattended.

How to Defend Against Insider Threats in Healthcare

The standard approach to mitigating insider threats can be broken down into four stages: Educate, Deter, Detect, and Investigate.

Educate: The workforce must be educated on allowable uses and disclosures of PHI, the risk associated with certain behaviors, patient privacy, and data security.

Deter: Policies must be developed to reduce risk and those policies enforced. The repercussions of HIPAA violations and privacy breaches should be clearly explained to employees.

Detect: Healthcare organizations should implement technological solutions that allow them to detect breaches rapidly and access logs should be regularly checked.

Investigate: When potential privacy and security breaches are detected they must be investigated promptly to limit the harm caused. When the cause of the breach is determined, steps should be taken to prevent a recurrence.

Some of the specific steps that can be taken to defend against insider threats in healthcare are detailed below:

Perform Background Checks

It should be standard practice to conduct a background check before any individual is employed. Checks should include contacting previous employers, Google searches, and a check of a potential employee’s social media accounts.

HIPAA training

All healthcare employees should be made aware of their responsibilities under HIPAA. Training should be provided as soon as possible, and ideally before network or PHI access is provided. Employees should be trained on HIPAA Privacy and Security Rules and informed of the consequences of violations, including loss of employment, possible fines, and potential criminal penalties for HIPAA violations.

Implement anti-phishing defenses

Phishing is the number one cause of data breaches. Healthcare employees are targeted as it is far easier to gain access to healthcare data if an employee provides login credentials than attempting to find software vulnerabilities to exploit. Strong anti-phishing defenses will prevent the majority of phishing emails from reaching inboxes. Advanced spam filtering software is now essential.

Security awareness training

Since no technological solution will prevent all phishing emails from reaching inboxes, it is essential – from a security and compliance perspective – to teach employees the necessary skills that will allow them to identify phishing attempts and other email/web-based threats.

Employees cannot be expected to know what actions place data and networks at risk. These must be explained if organizations want to eradicate risky behavior. Security awareness training should also be assessed. Phishing simulation exercises can help to reinforce training and identify areas of weakness that can be tackled with further training.

Encourage employees to report suspicious activity

Employees are often best placed to identify potential threats, such as changes in the behavior of co-workers. Employees should be encouraged to report potentially suspicious behavior and violations of HIPAA Rules.

While Edward Snowden did not work in healthcare, his actions illustrate this well. The NSA breach could have been avoided if his requests for co-workers’ credentials were reported.

Controlling access to sensitive information

The fewer privileges employees have, the easier it is to prevent insider breaches in healthcare. Limiting data access to the minimum necessary amount will limit the harm caused in the event of a breach. You should be implementing the principle of least privilege. Give employees access to the least amount of data as possible. This will limit the data that can be viewed or stolen by employees or hackers that manage to obtain login credentials.

Encrypt PHI on all portable devices

Portable electronic devices can easily be stolen, but the theft of a device need not result in the exposure of PHI. If full disk encryption is used, the theft of the device would not be a reportable incident and patients’ privacy would be protected.

Enforce the use of strong passwords

Employees can be told to use strong passwords or long passphrases, but unless password policies are enforced, there will always be one employee that chooses to ignore those policies and set a weak password. You should ensure that commonly used passwords and weak passwords cannot be set.

Use two-factor authentication

Two-factor authentication requires the use of a password for account access along with a security token. These controls prevent unauthorized access by outsiders, as well as limiting the potential for an employee to use another employee’s credentials.

Terminate access when no longer required

You should have a policy in place that requires logins to be deleted when an employee is terminated, a contract is completed, or employees leave to work for another organization. There have been many data breaches caused by delays in deleting data access rights. Data access should not be possible from the second an employee walks out the door for the last time.

Monitor Employee Activity

If employees require access to sensitive data for work purposes it can be difficult to differentiate between legitimate data access and harmful actions. HIPAA requires PHI access logs to be maintained and regularly checked. Since this is a labor-intensive task, it is often conducted far too infrequently. The easiest way to ensure inappropriate accessing of medical records is detected quickly is to implement action monitoring software and other software tools that can detect anomalies in user activity and suspicious changes in data access patterns.

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Healthcare Compliance Programs Not In Line With Expectations of Regulators

Posted by HIPAA Journal

Healthcare compliance officers are prioritizing compliance with HIPAA Privacy and Security Rules, even though the majority of Department of Justice and the HHS Office of Inspector General enforcement actions are not for violations of HIPAA or security breaches, but corrupt arrangements with referral sources and false claims. There are more penalties issued by regulators for these two compliance failures than penalties for HIPAA violations.

HIPAA enforcement by the HHS’ Office for Civil Rights has increased, yet the liabilities to healthcare organizations from corrupt arrangements with referral sources and false claims are far higher. Even so, these aspects of compliance are relatively low down the list of priorities, according to a recent survey of 388 healthcare professionals conducted by SAI Global and Strategic Management Services.

The survey was conducted on compliance officers from healthcare organizations of all sizes, from small physician practices to large integrated hospital systems. The aim of the study was to identify the key issues faced by compliance officers and determine how compliance departments are responding and prioritizing their resources.

When asked to rank their main priorities, dealing with HIPAA data breaches was overwhelmingly the top priority and the biggest concerns were HIPAA privacy and security.

The list of HIPAA enforcement actions has grown considerably over the past two years but there are still fewer penalties than for false claims and arrangements with referral sources. Even so, ensuring claims accuracy was only ranked third in compliance officers’ priority list and arrangement with referral sources was ranked fifth. The survey shows there is a gap between what OIG and DOJ consider to be the highest risk areas and where compliance officers see the greatest risks.

“The question has to be asked as to why, in the face the enforcement agencies’ priorities, compliance officers are placing these high risk-areas in a lower priority,” said former HHS Inspector General and CEO of Strategic Management Services Richard Kusserow. “The takeaway from the survey is that compliance officers should be prepared to better align their priorities and programs with those set out by the regulatory and enforcement agencies.”

Part of the reason for the focus on HIPAA compliance is the increase in enforcement activity by OCR in the past two years, the media activity surrounding healthcare data breaches, and the relatively high fines for covered entities discovered not to have fully complied with HIPAA Rules. With OCR investigating all breaches of more than 500 records, and data breaches now occurring with increasing frequency, it is easy to see why HIPAA compliance is being prioritized.

Even though HIPAA is the main priority for compliance officers and where most resources are focused, only one in five compliance officers feels their organization is well prepared for a HIPAA compliance audit. Last year when the survey was conducted, 30% of compliance officers said they were highly confident that they were well prepared for a HIPAA audit. The percentage of compliance officers who said they are moderately prepared for a HIPAA compliance audit has increased from 50% to 61%, showing the focus on HIPAA compliance is having a positive effect.

The study suggests the workload for compliance officers is increasing, but budgets are stagnant. Compliance officers are increasingly responsible for conducting internal audits and providing legal counsel in addition to overseeing compliance with HIPAA Privacy and Security Rules. The high workload and limited resources mean other aspects of compliance are being neglected. According to the report, “Compliance offices are being stretched thin to meet their obligations.”

While external compliance assessments are highly beneficial, only a quarter of respondents said they use independent third parties to complete those assessments, with three quarters performing self-assessments, internal surveys, and using compliance checklists to evaluate their compliance programs.

“The 2018 Healthcare Compliance Benchmark Survey gives us a better understanding of compliance program development in the healthcare sector and suggests that effectiveness is being measured in terms of output, rather than outcome,” said SAI Global CEO Peter Grana. “It is abundantly clear that there is a need for healthcare organizations to remove barriers and increased responsibilities being laid on their compliance offices that distract from the development of effective risk controls.”

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