HIPAA News for Small and Mid-Sized Practices

Email Top Attack Vector in Healthcare Cyberattacks

Posted by HIPAA Journal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Is GoToMeeting HIPAA Compliant?

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

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

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

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

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

How secure is GoToMeeting? Is GoToMeeting HIPAA compliant?

Is GoToMeeting HIPAA Compliant?

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

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

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

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

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

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

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

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

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

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How to Make Your Email HIPAA Compliant

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

How to Make Your Email HIPAA Compliant

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

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

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

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

Ensure you have end-to-end encryption for email

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

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

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

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

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

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

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

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

Ensure your email is configured correctly

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

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

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

Develop policies on the use of email and train your staff

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

Ensure all emails are retained for 6 years

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

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

Obtain consent from patients before communicating with them via email

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

Seek legal advice on HIPAA compliance and email

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

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Second Draft of the Revised NIST Cybersecurity Framework Published

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The second draft of the revised NIST Cybersecurity Framework has been published. Version 1.1 of the Framework includes important changes to some of the existing guidelines and several new additions.

Version 1.0 of the NIST Cybersecurity Framework was first published in 2014 with the aim of helping operators and owners of critical infrastructure assess their risk profiles and improve their ability to prevent, detect, and respond to cyberattacks. The Framework establishes a common language for security models, practices, and security controls across all industries.

The Framework is based on globally accepted cybersecurity best practices and standards, and adoption of the Framework helps organizations take a more proactive approach to risk management. Since is publication in 2014, the Framework has been adopted by many private and public sector organizations to help them develop and implement effective risk management practices.

Following the release of the CSF, NIST has received numerous comments from public and private sector organizations on potential enhancements to improve usability of the Framework. Those comments were taken on board and incorporated in the first revised draft of the Framework which was published in January 2017. The latest draft includes several refinements that take into account feedback received on the first draft of the revised Framework.

Several changes have been made in version 1.1 of the NIST CSF to meet the requirements of the Cybersecurity Enhancement Act of 2014, which led to the creation of the NIST CSF. The first version of the NIST CSF failed to address all of the requirements, although the latest update brings the NIST CSF closer to meeting all of its initial goals.

The latest version of the Framework clarifies some of the language relating to cybersecurity measurement, further guidance is included on improving supply chain security, and changes have been made to incorporate mitigating risk of IoT devices and operational technology.

NIST has also issued an update to its Roadmap for Improving Critical Infrastructure Security which details several topics that will be considered for upcoming revisions of the Framework and details of future planned activities.

Adoption of the Framework is voluntary for most organizations, which can choose an appropriate implementation tier to suit their cybersecurity risk management practices. However, the Presidential Executive Order on Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure in May 2017 made adoption of the Framework mandatory for all federal agencies.

Comments on the second draft of the revised NIST Cybersecurity Framework are being accepted until January 19, 2018. The final version of version 1.1 of the Cybersecurity Framework is expected to be released in Spring 2018.

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Medical Records from Pennsylvania Obs/Gyn Clinic Found at Public Recycling Center

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Paper files containing names, Social Security numbers, and medical histories, including details of cancer diagnoses and sexually transmitted diseases, have been dumped at a recycling center in Allentown, Pennsylvania.

The files appear to have come from Women’s Health Consultants, an obstetrics and gynecology practice that had centers in South Whitehall Township and Hanover Township, PA. Women’s Health Consultants is no longer in business.

How the records came to be dumped at the recycling center is unknown as the container where the records were disposed of was not covered by surveillance cameras.

The center does have a locked recycling container where sensitive documents containing confidential information can be disposed of securely, but that container was not used. The records were dumped in a container where they could be accessed by unauthorized individuals.

The person who discovered the files left an anonymous tip on the non-emergency line of the Allentown communication center. According to The Morning Call, a city employee visited the recycling center and pushed the records further into the container, so they were no longer visible. The container has since been loaded onto a truck and is no longer accessible by the public. The container will be sent on to a recycling company.

The privacy breach has been reported to the Pennsylvania attorney general’s office, although it is unclear whether an investigation into the incident has been launched.

HIPAA requires all physical records containing patients’ protected health information to be disposed of securely, rendering all information unreadable and indecipherable, so that it cannot be reconstructed. For paper records, this typically involves shredding, pulping, or burning the files. If that process is to occur off-site, the records should be secured in transit to ensure they cannot be accessed by unauthorized individuals.

The failure to dispose of records securely can attract a significant financial penalty, ranging from $100 to $50,000 per instance, up to a maximum of $1,500,000.

The Department of Health and Human Services’ Office for Civil Rights has already punished healthcare organizations for improperly disposing of medical records. In 2015, Cornell Prescription Pharmacy settled an improper disposal case with OCR for $125,000.

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Effective Identity and Access Management Policies Help Prevent Insider Data Breaches

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The HIPAA Security Rule administrative safeguards require information access to be effectively managed. Only employees that require access to protected health information to conduct their work duties should be granted access to PHI.

When employees voluntarily or involuntarily leave the organization, PHI access privileges must be terminated. The failure to implement procedures to terminate access to PHI immediately could all too easily result in a data breach. Each year there are many examples of organizations that fail to terminate access promptly, only to discover former employees have continued to login to systems remotely after their employment has come to an end.

If HIPAA-covered entities and business associates do not have effective identity and access management policies and controls, there is a significant risk of PHI being accessed by former employees after employment has terminated. Data could be copied and taken to a new employer, or used for malicious purposes. The Department of Health and Human Services’ Office for Civil Rights’ breach portal includes many examples of both.

In its November cybersecurity newsletter, OCR has drawn attention to the risk of these types of insider threats and explains the importance of implementing effective identity and access management policies.

When an employee is terminated or quits, access to PHI must be terminated immediately, preferably before the individual has left the building. There are several ways that access to PHI can be terminated, although most commonly this is achieved by deleting user accounts.

While the employee’s account must be terminated, covered entities must also ensure that other accounts that the employee had access to are secured. Passwords for administrative or privileged accounts should also be changed.

In addition to terminating user accounts to prevent unauthorized accessing of electronic protected health information, OCR reminds covered entities and business associates of the need to also terminate physical access to facilities and health records. Keys and keycards must be returned, users should be removed from access lists, security codes should be changed, and ID cards returned.

If an employee has been issued with a laptop, mobile phone, or other electronic device, they must be recovered. If there is a BYOD policy and employees have been allowed to use their own devices to access or store ePHI, personal devices must be purged.

Since employees may have access to multiple accounts, logs should be created whenever access to PHI or systems is granted, privileges are increased, or equipment is issued. The logs can be used to make sure all accounts are secured and all equipment can be retrieved.

OCR suggests developing a set of standard procedures that can be applied and followed whenever an employee or other workforce member quits or is terminated. A checklist is a good way to ensure that nothing is missed.

Identity and access management policies will only be effective if they are followed 100% of the time. To ensure that is the case, covered entities and business associates should consider conducting audits to confirm procedures are being followed. Audits should also include checking user logs to ensure former employees are not continuing to access systems and data after their employment has been terminated.

Further tips to prevent unauthorized accessing of PHI and ePHI by former employees can be found on this link.

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Survey Reveals Poor State of Email Security in Healthcare

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A recent survey showed 98% of top healthcare providers have yet to implement the DMARC (Domain-based Message Authentication, Reporting & Conformance) email authentication standard.

The National Health Information Sharing and Analysis Center (NH-ISAC), the Global Cybersecurity Alliance (GCA), and cybersecurity firm Agari investigated the level of DMARC adoption in the healthcare industry and the state of healthcare email security.

For the report, Agari analyzed more than 500 domains used by healthcare organizations and pharmaceutical firms, as well as more than 800 million emails and over 1,900 domains from its Email Trust Network.

The report – Agari Industry DMARC Adoption Report for Healthcare – shows that while DMARC can all but eliminate phishing attacks that impersonate domains, only 2% of the top healthcare organizations and fewer than 23% of all healthcare organizations have adopted DMARC.

Only 21% of healthcare organizations are using DMARC to monitor for unauthenticated emails, yet those organizations are not blocking phishing emails. Only 2% are protecting patients from phishing attacks spoofing their domains. NH-ISC reports that only 30% of its members have adopted DMARC.

The impersonation of domains is a common tactic employed by phishers to fool victims into believing emails have been sent by trusted organizations. The healthcare industry is at the highest risk of being targeted by fraudulent email, according to the report. Over the past 6 months, 92% of healthcare domains have been targeted by phishers and scammers using fraudulent email. 57% of all emails sent from healthcare organizations are fraudulent or unauthenticated.

DMARC has been widely adopted in industry, although the healthcare industry lags behind. The same is true of federal agencies, which have been slow to implement the email security standard. Last month, the U.S Department of Homeland Security addressed this by issuing a Binding Operational Directive, which required all federal agencies to implement DMARC within 90 days.

The healthcare industry is being urged to do the same. NH-ISAC is already encouraging its members to adopt DMARC, while the GCA has launched a ‘90-Days to DMARC’ challenge, which commences on December 1. Under the challenge, GCA will be releasing guidance, conducting webinars, and making resources available to help healthcare organizations plan, implement, analyze, and adjust DMARC.

“GCA is challenging organizations in all sectors to follow the path set forward by DHS. We applaud NH-ISAC for calling upon its members to implement DMARC,” said Phil Reitinger, President and CEO of GCA.

Jim Routh, CSO, Aetna, said “The implementation of DMARC for Aetna improved the consumer experience by eliminating unwanted and fraudulent email which reduced the risk of phishing, resulting in more email engagement and healthier lives for members.”

“Successful DMARC implementations from Aetna, Blue Shield of California and Spectrum Health are leading the way for other healthcare industry organizations to restore trust in communications,” said Patrick Peterson, founder and executive chairman of Agari.

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October 2017 Healthcare Data Breaches

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In October 2017, there were 27 healthcare data breaches reported to the Department of Health and Human Services’ Office for Civil Rights. Those data breaches resulted in the theft/exposure of 71,377 patient and plan member records. October saw a significant fall in the number of reported breaches compared to September, and a major fall in the number of records exposed.

Healthcare data breaches by month (July-October 2017)

October saw a major reduction in the number of breached records, with the monthly total almost 85% lower than September and almost 88% lower than the average number of records breached over the preceding three months.

healthcare records breached July-October 2017

Healthcare providers were the worst hit in October with 19 reported data breaches. There were six data breaches reported by health plans and at least two incidents involved business associates of HIPAA-covered entities.

October 2017 Healthcare Data Breaches by Covered Entity Type

October 2017 healthcare data breaches by covered entity type

Main Causes of October 2017 Healthcare Data Breaches

Unauthorized access/disclosures were the biggest causes of healthcare data breaches in October. There were 14 breaches reported involving unauthorized access/disclosures, 8 hacking incidents, four cases of theft, and one unencrypted laptop computer was lost.

cause of october 2017 healthcare data breaches

Unauthorized access/disclosures were the leading causes of October 2017 healthcare data breaches, although hacking/IT incidents exposed more records – Over twice the number of records exposed by unauthorized access/disclosures and hacking/IT incidents exposed more records than all other breach types combined.

october 2017 healthcare data breaches - records exposed

Location of Exposed and Stolen Protected Health Information

Email was the most common location of breached PHI in October. Five of the nine incidents involving email were the result of hacking/IT incidents such as phishing. The remaining four incidents were unauthorized access/disclosures such as healthcare employees sending emails containing PHI to incorrect recipients. Five incidents involved paper records, highlighting the importance of securing physical records as well as electronic protected health information.

october 2017 healthcare data breaches - location of breached PHI

October 2017 Healthcare Data Breaches by State

In October, healthcare organizations based in 22 states reported data breaches. The state that experienced the most data breaches was Florida, with 3 reported breaches. Maryland, Massachusetts, and New York each had two breaches.

Alabama, Arizona, California, Connecticut, Georgia, Iowa, Illinois, Kansas, Kentucky, Louisiana, Missouri, North Carolina, Ohio, Rhode Island, Tennessee, Texas, Virginia, and Washington each had one reported breach.

Largest Healthcare Data Breaches in October 2017

 

Breached Entity Entity Type Breach Type Individuals Affected
Chase Brexton Health Care Healthcare Provider Hacking/IT Incident 16,562
East Central Kansas Area Agency on Aging Business Associate Hacking/IT Incident 8,750
Brevard Physician Associates Healthcare Provider Theft 7,976
MHC Coalition for Health and Wellness Healthcare Provider Theft 5,806
Catholic Charities of the Diocese of Albany Healthcare Provider Hacking/IT Incident 4,624
MGA Home Healthcare Colorado, Inc. Healthcare Provider Hacking/IT Incident 2,898
Orthopedics NY, LLP Healthcare Provider Unauthorized Access/Disclosure 2,493
Mann-Grandstaff VA Medical Center Healthcare Provider Theft 1,915
Arch City Dental, LLC Healthcare Provider Unauthorized Access/Disclosure 1,716
John Hancock Life Insurance Company (U.S.A.) Health Plan Unauthorized Access/Disclosure 1,715

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How to Handle A HIPAA Privacy Complaint

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Healthcare providers need to be prepared to deal with a HIPAA privacy complaint from a patient. In order for an efficient response to be conducted, policies should be developed covering the complaints procedure and staff must be trained to handle HIPAA privacy complaints correctly.

Patients must also be clearly informed how they can make a HIPAA privacy complaint if they feel that their privacy has been violated or HIPAA Rules have been breached. This should be clearly stated in your Notice of Privacy Practices.

A HIPAA Privacy Complaint Should be Taken Seriously

When a HIPAA privacy complaint is filed, it is important that it is dealt with quickly and efficiently. Fast action will help to reassure patients that that you treat all potential privacy and security violations seriously.

While patients may be annoyed or upset that an error has been made, in many cases, patients are not looking to cause trouble. They want the issue to be investigated, any risks to be mitigated, the problem to be addressed to ensure it does not happen again, and in many cases, they seek an apology. If the complaint is dealt with quickly and efficiently, it may not be taken any further.

If a verbal complaint is made, the patient should be asked to submit the complaint in writing. You should provide a form for the patient to do this. The HIPAA privacy complaint form can then be passed on to your Privacy Officer to investigate.

Investigate All Complaints and Take Prompt Action

All HIPAA privacy complaints should be investigated to determine who was involved, and how the privacy of the patient was violated. The privacy breach may not be a one-off mistake. It could be an indication of a widespread problem within your organization. The Privacy Officer must identify the root cause of the privacy violation and take action to ensure that any issues are corrected to prevent similar privacy breaches from occurring in the future.

All individuals involved in the breach must be identified and appropriate action taken – disciplinary action and/or additional training. A report of the incident should be given to law enforcement if a crime is suspected, and policies and procedures may need to be updated to introduce new safeguards to prevent a recurrence.

The Privacy Officer will need to determine whether there has been a HIPAA breach, and if the incident must be reported. The investigation must determine whether any other patients are likely to have had their privacy violated. If so, they will need to be notified within 60 days.

If a HIPAA breach has occurred, the Breach Notification Rule requires covered entities to report the breach to OCR without unnecessary delay. State laws may also require healthcare organizations to notify appropriate state attorneys general of the breach.

A breach impacting 500 or more individuals must be reported to OCR within 60 days of the discovery of the breach, and within 60 days of year end for smaller breaches. The failure to investigate promptly may see that deadline missed. In 2017, OCR issued its first HIPAA penalty solely for a Breach Notification Rule violation.

It is important that all stages of the complaint and investigation are documented. Those documents are likely to be requested in the event of an audit or investigation by OCR or state attorneys general. If any documents are missing, that aspect of the complaint investigation cannot be easily proven to have taken place.

Once the investigation into the HIPAA privacy complaint has been completed, it is important to report back to the complainant and explain that their complaint has been investigated, and the actions taken to mitigate harm and prevent similar incidents from occurring in the future should be explained.

Summary of How to Correctly Handle a HIPAA Complaint

  • Request the HIPAA privacy complaint is made in writing
  • Pass the compliant to the Privacy Officer
  • Privacy Officer should find out who was involved and what PHI was breached
  • The root cause of the breach must be established
  • Action should be taken to mitigate harm
  • Pass information to HR to take disciplinary action against employees (if appropriate)
  • Report the breach to law enforcement (if appropriate)
  • Policies and procedures should be updated to prevent a recurrence
  • Retrain staff
  • Determine whether the breach is a reportable incident
  • Collate all documentation in relation to the breach and investigation
  • Contact the complainant and explain the findings of the investigation

If the breach is determined to be a reportable incident

  • Submit a breach report to OCR
  • Submit breach reports to appropriate state attorneys general
  • Provide a toll-free number for patients to find out more information
  • Notify all affected individuals by mail
  • Post a breach notice in a prominent place on the home page of your organization’s website for 90 days if current contact information for 10 or more individuals is not held

If the breach is discovered to affect more than 500 individuals

  • Issue a press release to a prominent media outlet

Privacy Violations Can Result in Financial Penalties

When patients believe their privacy has been violated, or HIPAA Rules have been breached, they may report the incident to the Department of Health and Human Services’ Office for Civil Rights. Some patients may choose to take this course of action rather than contact the covered entity concerned.

OCR is likely to take an interest in an organization’s HIPAA policies covering privacy complaints. Financial penalties await organizations that do not have documented policies and procedures in place, and the penalties for HIPAA violations can be severe.

OCR wants to see that complaints are treated seriously, they are adequately investigated and resolved, and that prompt action is taken to ensure they do not happen again. A fast and efficient response to a HIPAA privacy complaint – and correction of any HIPAA violations uncovered – will reduce the risk of a HIPAA violation penalty, and the amount of the penalty if it cannot be avoided.

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