HIPAA News

$16 Million Anthem HIPAA Breach Settlement Takes OCR HIPAA Penalties Past $100 Million Mark

OCR has announced that an Anthem HIPAA breach settlement has been reached to resolve potential HIPAA violations discovered during the investigation of its colossal 2015 data breach that saw the records of 78.8 million of its members stolen by cybercriminals.

Anthem has agreed to pay OCR $16 million and will undertake a robust corrective action plan to address the compliance issues discovered by OCR during the investigation.

The previous largest ever HIPAA breach settlement was $5.55 million, which was agreed with Advocate Health Care in 2016. “The largest health data breach in U.S. history fully merits the largest HIPAA settlement in history,” said OCR Director Roger Severino.

Anthem Inc., an independent licensee of the Blue Cross and Blue Shield Association, is America’s second largest health insurer. In January 2015, Anthem discovered cybercriminals had breached its defenses and had gained access to its systems and members’ sensitive data. With assistance from cybersecurity firm Mandiant, Anthem determined this was an advanced persistent threat attack – a continuous and targeted cyberattack conducted with the sole purpose of silently stealing sensitive data.

The attackers first gained access to its IT systems on December 2, 2014, with access continuing until January 27, 2015. During that time the attackers stole the data of 78.8 million plan members, including names, addresses, dates of birth, medical identification numbers, employment information, email addresses, and Social Security numbers.

The attackers gained a foothold in its network through spear phishing emails sent to one of its subsidiaries. They were then able to move laterally through its network to gain access to plan members’ data.

Anthem reported the data breach to OCR on March 13, 2015; however, by that time OCR was already a month into a compliance review of Anthem Inc. OCR took prompt action after Anthem uploaded a breach notice to its website and media reports started to appear indicating the colossal scale of the breach.

The OCR investigation uncovered multiple potential violations of HIPAA Rules. Anthem chose to settle the HIPAA violation case with no admission of liability.

OCR’s alleged HIPAA violations were:

  • 45 C.F.R. § 164.308(u)(1)(ii)(A) – A failure to conduct a comprehensive, organization-wide risk analysis to identify potential risks to the confidentiality, integrity, and availability of ePHI.
  • 45 C.F.R. § 164.308(a)(1)(ii)(D) – The failure to implement regularly review records of information system activity.
  • 45 C.F.R. § 164.308 (a)(6)(ii) – Failures relating to the requirement to identify and respond to detections of a security incident leading to a breach.
  • 45 C.F.R. § 164.312(a) – The failure to implement sufficient technical policies and procedures for electronic information systems that maintain ePHI and to only allow authorized persons/software programs to access that ePHI.
  • 45 C.F.R. § 164.502(a) – The failure to prevent the unauthorized accessing of the ePHI of 78.8 million individuals that was maintained in its data warehouse.

“Unfortunately, Anthem failed to implement appropriate measures for detecting hackers who had gained access to their system to harvest passwords and steal people’s private information,” said Roger Severino. “We know that large health care entities are attractive targets for hackers, which is why they are expected to have strong password policies and to monitor and respond to security incidents in a timely fashion or risk enforcement by OCR.”

In addition to the OCR HIPAA settlement, Anthem has also paid damages to victims of the breach. Anthem chose to settle a class action lawsuit filed on behalf of 19.1 million customers whose sensitive information was stolen. Anthem agreed to settle the lawsuit of $115 million.

2018 OCR HIPAA Settlements and Civil Monetary Penalties

Given the size of the Anthem HIPAA settlement it is no surprise that 2018 has seen OCR smash its previous record for financial penalties for HIPAA violations. The latest settlement takes OCR HIPAA penalties past the $100 million mark.

There have not been as many HIPAA penalties in 2018 than 2016(13), although this year has seen $1.4 million more raised in penalties than the previous record year and there are still 10 weeks left of 2018. The total is likely to rise further still.

OCR Financial Penalties for HIPAA Violations (2008-2018)

Year Settlements and CMPs Total Fines
2018 1 $24,947,000
2017 1 $19,393,000
2016 2 $23,505,300
2015 3 $6,193,400
2014 5 $7,940,220
2013 5 $3,740,780
2012 6 $4,850,000
2011 6 $6,165,500
2010 13 $1,035,000
2009 10 $2,250,000
2008 7 $100,000
Total 59 $100,120,200

 

HIPAA Fines and CMPs

Largest Ever Penalties for HIPAA Violations

Year Covered Entity Amount Settlement/CMP
2018 Anthem Inc $16,000,000 Settlement
2016 Advocate Health Care Network $5,550,000 Settlement
2017 Memorial Healthcare System $5,500,000 Settlement
2014 New York and Presbyterian Hospital and Columbia University $4,800,000 Settlement
2018 University of Texas MD Anderson Cancer Center $4,34,8000 Civil Monetary Penalty
2011 Cignet Health of Prince George’s County $4,300,000 Civil Monetary Penalty
2016 Feinstein Institute for Medical Research $3,900,000 Settlement
2018 Fresenius Medical Care North America $3,500,000 Settlement
2015 Triple S Management Corporation $3,500,000 Settlement
2017 Children’s Medical Center of Dallas $3,200,000 Civil Monetary Penalty

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Aetna Settles HIPAA Violation Case with State AGs

In 2017, errors occurred with two Aetna mailings that resulted in the impermissible disclosure of the protected health information of plan members, including HIV statuses and AFib diagnoses.

A class action lawsuit was filed on behalf of the victims of the HIV status breach which was settled for $17 million in January. Now Aetna has reached settlements with the attorneys general for New Jersey, Connecticut, and the District of Columbia to resolve the alleged HIPAA violations discovered during an investigation into the privacy breaches.

The first mailing was sent on July 28, 2017 by an Aetna business associate. Over-sized windowed envelopes were used for the mailing, through which it was possible to see the names and addresses of plan members along with the words “HIV Medications.” Approximately 12,000 individuals received the mailing.

In September, a second mailing was sent on behalf of Aetna to 1,600 individuals. This similarly resulted in an impermissible disclosure of PHI. In addition to names and addresses, the logo of an IMPACT AFib study was visible, which suggested the individual had been diagnosed with atrial fibrillation.

A multi-state investigation was launched to investigate potential violations of the Health Insurance Portability and Accountability Act (HIPAA) and state laws pertaining to the protected health information of state residents, including the Consumer Protection Procedures Act in DC and the New Jersey AIDS Assistance Act.

The investigation confirmed that in both cases there had been an impermissible disclosure of protected health information, that Aetna failed to protect consumers’ confidential health information, and that Aetna had deceived consumers about its ability to safeguard their health information.

Aetna has agreed to settlements with the State of Connecticut ($99,959), the District of Columbia ($175,000) and a civil monetary penalty of $365,211.59 will be paid to the State of New Jersey. Washington also participated in the investigation but has yet to decide on an appropriate settlement amount.

“Companies entrusted with individuals’ protected health information have a duty to avoid improper disclosures,” said New Jersey attorney general Gurbir Grewal. “Aetna fell short here, potentially subjecting thousands of individuals to the stigma and discrimination that, unfortunately, still may accompany disclosure of their HIV/AIDS status. I am pleased that our investigation has led Aetna to adopt measures to prevent this from happening again.”

“Every patient should feel confident that their insurance company or health provider will safeguard their confidential medical information. Today’s action will prevent further disclosures and warns other insurance companies that they are responsible for protecting consumers’ private information,” said, District of Columbia attorney general Karl A. Racine.

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UMass Memorial Health Care Pays $230,000 to Resolve Alleged HIPAA Violations

Mass Memorial Health Care has been fined $230,000 by the Massachusetts attorney general for HIPAA failures related to two data breaches that exposed the protected health information (PHI) of more than 15,000 state residents.

A lawsuit was filed against UMass Memorial Health Care in which attorney general Maura Healey claimed UMass Memorial Medical Group Inc., and UMass Memorial Medical Center Inc., failed to implement sufficient measures to protect patients’ sensitive health information.

In two separate incidents, employees accessed and copied patient health information without authorization and used that information to open cell phone and credit card accounts in the victims’ names.

It was also alleged that UMass Memorial Medical Group Inc., and UMass Memorial Medical Center Inc., were both aware of employee misconduct, yet failed to properly investigate complaints related to data breaches and discipline the employees concerned in a timely manner. Both entities also failed to ensure that patients’ PHI was properly safeguarded. These failures violated Massachusetts data security laws, the Consumer Protection Act, and the Health Insurance Portability and Accountability Act.

UMass Memorial Health Care cooperated fully with the state attorney general’s investigation into the data breaches and agreed to settle the resulting lawsuit. In addition to paying the $230,000 fine, UMass Memorial Health Care will ensure that employee background checks are conducted prior to hiring new staff, all employees will receive further training on the correct handling of PHI, employee access to patient health information will be limited, risk analyses will be conducted to identify potential security issues, and any issues that are found will be subjected to a HIPAA-compliant risk management process. UMass Memorial Health Care will also ensure proper employee discipline and any suspected cases of improper accessing of ePHI will be investigated promptly.

Both UMass Memorial Medical Group Inc., and UMass Memorial Medical Center Inc., are also required to hire an independent firm to conduct a thorough review of data security policies and procedures and must report back to the Mass attorney general’s office on the findings of those reviews.

“Massachusetts residents rely on their health care providers to keep private health information safe and secure,” said Maura Healey. “This resolution ensures UMass Memorial implements important measures to prevent this type of breach from happening again.”

“In the four years since [these breaches] took place we have taken steps aimed at further strengthening our privacy and information security program,” said a UMass Memorial Health Care spokesperson in a written statement. “This includes the implementation of additional technical tools that safeguard patient information, and enhancement of our existing privacy and information security procedures.”

State Attorneys General Pick Up the Slack in HIPAA Enforcement

After two years of increased enforcement of HIPAA Rules the HHS’ Office for Civil Rights has eased up on settlements and civil monetary penalties to resolve HIPAA violations, with only five settlements reached in 2018 and one civil monetary penalty issued. While OCR has eased up on financial penalties for HIPAA violations, state attorneys general fines are on track to make 2018 a record year for HIPAA enforcement.

UMass Memorial Health Care is the fifth healthcare organization to settle a HIPAA violation case with a state attorney general in 2018, joining The Arc of Erie County ($200,000), EmblemHealth ($575,000), and Aetna ($1,150,000) which have all been fined by the New York AG this year, and Virtua Medical Group which settled HIPAA violations with the New Jersey AG for $417,816 in April.

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August 2018 Healthcare Data Breach Report

August was a much better month for the healthcare industry with fewer data breaches reported than in July. In August, 28 healthcare data breaches were reported to the HHS’ Office for Civil Rights, a 17.86% month-over-month reduction in data breaches.

Healthcare Data Breaches by Month

There was also a major reduction in the number of healthcare records that were exposed or stolen. In August, 623,688 healthcare records were exposed or stolen – A 267.56% reduction from August, when 2,292,522 healthcare records were breached.

HEalthcare Records Exposed by Month

Causes of Healthcare Data Breaches in August 2018

Hacking incidents dominated the breach reports in August, accounting for 53.57% of all reported data breaches and 95.73% of all records exposed or disclosed in August. Eight of the top ten breaches were the result of hacks, malware, or ransomware attacks.

Causes of Healthcare Data Breaches in August 2018

Insider breaches are a major problem in the healthcare industry, more so than other verticals. In August there were nine insider breaches – 32.14% of the healthcare data breaches in August. Those breaches involved the unauthorized access or impermissible disclosure of 18,488 healthcare records – 2.96% of the monthly total.

There were two breaches involving the loss of PHI, one case of lost physical records and one lost portable electronic device containing electronic protected health information. The two theft incidents in August involved paper records.

Largest Healthcare Data Breaches in August 2018

Name of Covered Entity Covered Entity Type Individuals Affected Type of Breach
AU Medical Center, INC Healthcare Provider 417000 Hacking/IT Incident
Fetal Diagnostic Institute of the Pacific Healthcare Provider 40800 Hacking/IT Incident
Legacy Health Healthcare Provider 38000 Hacking/IT Incident
Acadiana Computer Systems, Inc. Business Associate 31151 Hacking/IT Incident
Carpenters Benefit Funds of Philadelphia Health Plan 20015 Hacking/IT Incident
University Medical Center Physicians Healthcare Provider 18500 Hacking/IT Incident
Simon Orthodontics Healthcare Provider 15129 Hacking/IT Incident
Wells Pharmacy Network Healthcare Provider 10000 Unauthorized Access/Disclosure
St. Joseph’s Medical Center Healthcare Provider 4984 Loss
Central Colorado Dermatology, PC Healthcare Provider 4065 Hacking/IT Incident

Location of Breached PHI

Email-related data breaches continue to dominate the healthcare data breach reports. A further 14 email-related data breaches were reported in August, the majority of which saw email accounts accessed by unauthorized individuals as a result of healthcare employees falling for phishing emails. Phishing attacks on healthcare providers are being reported regularly, highlighting just how important it is for healthcare organizations to provide ongoing security awareness training for employees to teach them the skills they need to identify phishing attempts.
There were six incidents involving PHI stored on network servers in August, including two confirmed ransomware attacks. There were five breaches involving paper records.
Location of Breached PHI in August 2018 Healthcare Data Breaches

August Data Breaches by Covered Entity Type

Healthcare providers experienced the lion’s share of data breaches in August with 21 reported breaches. There were two health plan breaches and business associates of HIPAA-covered entities reported 5 breaches, with one further breach having some business associate involvement.

 

August Healthcare Data Breaches by State

Healthcare organizations based in 19 states experienced data breaches in August. While California and Texas usually top the list for data breaches due to the number of healthcare organizations based in those states, atypically, in August Oregon was the worst affected state with four breaches reported.

California and Florida each had three breaches reported, Colorado and Texas had two, and there was one breach reported in Arizona, Georgia, Hawaii, Illinois, Indiana. Louisiana, Maryland, Michigan, Nevada, New York, Ohio, Pennsylvania, Tennessee, and Virginia.

HIPAA Enforcement Actions in August

In 2016 and 2017, the HHS’ Office for Civil Rights took a hard line on enforcement of HIPAA Rules and agreed 21 settlements with HIPAA-covered entities and issued two civil monetary penalties. There have only been three financial settlements reached between OCR and HIPAA-covered entities in 2018 and no further fines or settlements were announced in August.  While OCR enforcement activity appears to have slowed, that is not the case with state attorneys general, in particular New York. The New York attorney general’s office has agreed two settlements with HIPAA-covered entities in 2018 with a third agreed in August.

The Arc of Erie County resolved violations of HIPAA Rules and state laws by paying a penalty of $200,000 to the New York attorney general’s office following the exposure of 3,751 individual’s PHI. The PHI had been uploaded to a website and could be accessed without authentication.

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$999,000 in HIPAA Penalties for Three Hospitals for Boston Med HIPAA Violations

Three hospitals that allowed an ABC film crew to record footage of patients as part of the Boston Med TV series have been fined $999,000 by the Department of Health and Human Services’ Office for Civil Rights (OCR) for violating Health Insurance Portability and Accountability Act (HIPAA) Rules.

This is the second HIPAA violation case investigated by OCR related to the Boston Med TV series. On April 16, 2016, New York Presbyterian Hospital settled its HIPAA violation case with OCR for $2.2 million to resolve the impermissible disclosure of PHI to the ABC film crew during the recording of the series and for failing to obtain consent from patients.

Fines for Boston Medical Center, Brigham and Women’s Hospital, & Massachusetts General Hospital

Boston Medical Center (BMC) settled its HIPAA violations with OCR for $100,000. OCR investigators determined that BMC had impermissibly disclosed the PHI of patients to ABC employees during production and filming of the TV series, violating 45 C.F.R. § 164.502(a).

Brigham and Women’s Hospital (BWH) settled its HIPAA violations with OCR for $384,000. BWH allowed an ABC film crew to record footage between October 2014 and January 2015. Prior to filming, BWH conducted a review of patient privacy issues and provided the ABC film crew with HIPAA privacy training – The same training that was provided to its workforce. BWH also obtained written authorizations from patients. However, OCR determined that despite those measures, HIPAA Rules were still violated. In the resolution agreement, OCR wrote, “Based on the timing of when BWH received some written patient authorizations, BWH impermissibly disclosed the PHI of patients to ABC employees,” in violation of 45 C.F.R. § I64.502(a). BWH also failed to reasonably safeguard the PHI of patients: A violation of 45 C.F.R. § 164.530(c).

Massachusetts General Hospital (MGH) settled its HIPAA violations with OCR for $515,000. The hospital similarly allowed a film crew to record footage between October 2014 and January 2015. A review of patient privacy issues was also conducted, and the film crew was provided with the same HIPAA privacy training that MGH provides to its employees.

As was the case with BWH, OCR determined that 45 C.F.R. § I64.502(a) was violated as authorizations were received after an impermissible disclosure and MGH failed to appropriately and reasonably safeguard patients’ PHI from disclosure during the filming of the series in violation of 45 C.F.R. § 164.530(c).

In addition to covering the financial penalty, each of the three hospitals must adopt a corrective action plan which includes providing further training to staff on the allowable uses and disclosures of PHI to film and media.

“Patients in hospitals expect to encounter doctors and nurses when getting treatment, not film crews recording them at their most private and vulnerable moments,” said Roger Severino, OCR director. “Hospitals must get authorization from patients before allowing strangers to have access to patients and their medical information.”

HIPAA Enforcement in 2018

OCR had a record year for HIPAA penalties in 2016 when it agreed 12 settlements to resolve HIPAA violations and issued one civil monetary penalty. 2017 saw 9 settlements reached with HIPAA-covered entities and one civil monetary penalty issued.

2018 has seen a reduction in financial penalties for HIPAA violations, with only three penalties issued prior the September 20, 2018 announcement. These latest three settlements bring the total number of OCR HIPAA violation penalties for the year up to six.

HIPAA Penalties and Settlements Agreed with OCR in 2018

Entity Penalty Penalty Type Reason for Penalty
Boston Medical Center $100,000 Settlement Filming patients without consent
Brigham and Women’s Hospital $384,000 Settlement Filming patients without consent
Massachusetts General Hospital $515,000 Settlement Filming patients without consent
University of Texas MD Anderson Cancer Center $4,348,000 Civil Monetary Penalty Lack of encryption and impermissible disclosure of ePHI
Filefax, Inc. $100,000 Settlement Impermissible disclosure of PHI
Fresenius Medical Care North America $3,500,000 Settlement Multiple HIPAA Violations

 

HIPAA Settlements with State Attorneys General in 2018

In addition to the penalties issued by OCR, there have been four settlements reached between HIPAA covered entities and state attorneys general in 2018.

State Covered Entity Amount Reason for Penalty
New York Arc of Erie County $200,000 Online Exposure of PHI
New Jersey Virtua Medical Group $417,816 Online Exposure of PHI
New York EmblemHealth $575,000 Exposure of PHI in Mailing
New York Aetna $1,150,000 Exposure of PHI in Mailing

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California Consumer Privacy Act Amendment Confirms HIPAA-Covered Entities Exempt

In June 2018, the legislature in California passed the California Consumer Privacy Act (CCPA) which introduced major changes to state law to protect the privacy of consumers.

CCPA introduced new privacy protections and rights for consumers, several of which are similar to those introduced in Europe in the General Data Protection Regulation (GDPR).

The CCPA does not go as far as GDPR and only applies to for-profit companies that hold the data of more than 50,000 individuals, but many of the new rights are similar, including the right to request access to personal data stored by a business, the right to be informed about the data that will be collected, the right to be informed whether personal data will be sold or disclosed, the right to have personal data deleted and to prevent personal data from being sold.

The CCPA has been heavily criticized, especially by tech firms such as Facebook, Google and PayPal. A 38-page letter was sent to lawmakers in California by 38 trade groups who have voiced considerable concerns over the requirements of the CCPA, including sections of the law which they consider unworkable and several technical issues that are likely to have negative and unintended consequences.

The CCPA is not due to take effect until January 1, 2020, which gives Californian lawmakers plenty of time to make amendments. There are likely to be several amendments made before the law comes into effect, the first of which have just been passed.

On August 31, 2018, the legislature passed SB 1121 which includes several technical edits to the CCPA and a notable change to the implementation of the CCPA. The compliance date has remained the same, although SB 1121 clarifies that the CCPA will go into effect as soon as it is signed into law. This is seen as an effort to ensure that California localities will not be able to pass conflicting laws before January 1, 2020.

Entities covered by the CCPA will be given additional time to ensure compliance, as SB 1121 changed the date by which the California Attorney General must publish its implementation regulations. The final date for publication of the implementation regulations is now July 1, 2020. Further, the Attorney General will not be permitted to bring CCPA enforcement actions against any company found not to be in compliance with CCPA until six months after the publication of the implementation guidelines.

In contrast to HIPAA, the CCPA includes a private right of action which allows California residents to take legal action against companies that have experienced data breaches as a result of a failure to implement appropriate security measures. In its previous form, any consumer that chose to take legal action for the exposure of their personal data was required to notify the attorney general within 30 days of filing a legal action. That notification requirement has now been dropped.

SB 1121 has also clarified exemptions for data already covered by other legislative acts, including the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GBLA), and the Driver’s Privacy Protection Act (DPPA).

All data handled pursuant to HIPAA, GBLA and the DPPA are exempt from the CCPA. Further, SB 1121 has confirmed that the CCPA will not apply to HIPAA-covered entities and neither to information collected by a HIPAA-covered entity or business associate that is part of a clinical trial.

SB 1121 has been passed, although the state governor has until September 30, 2018 to sign the amendment.

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Hurricane Florence: OCR Issues Guidance on Appropriate Sharing of Health Information

On Wednesday, September 12, 2018, President Trump approved a request for a federal emergency declaration in the state of Virginia and made FEMA resources available for the state.

The Secretary of the U.S. Department of Health and Human Services, Alex Azar, has also declared a Public Health Emergency in Virginia, North Carolina, and South Carolina.

The Secretarial declaration eases certain HIPAA restrictions and helps Centers for Medicare & Medicaid Services’ (CMS) beneficiaries and their healthcare providers prepare for the possible impact of Hurricane Florence and provides greater flexibility to meet emergency health needs.

During severe disasters and public emergencies healthcare providers face increased challenges and may struggle to continue to meet all requirements of the HIPAA Privacy Rule.

In emergency situations, such as during hurricanes, the HIPAA Privacy Rule still applies; however, Alex Azar’s declaration of a Public Health Emergency means certain provisions of the Privacy Rule have been relaxed under the Project Bioshield Act of 2004 (PL 108-276) and section 1135(b) of the Social Security Act.

During the period of the Public Health Emergency, sanctions and penalties against healthcare providers are waived for the following provisions of the HIPAA Privacy Rule.

  • 45 CFR 164.510(b) – The requirement to obtain authorization from a patient to speak with family members or friends involved in the patient’s care
  • 45 CFR 164.510(a) – The requirement to honor requests to opt out of the facility directory
  • 45 CFR 164.520 – The requirement to distribute a notice of privacy practices
  • 45 CFR 164.522(a) – The patient’s right to request privacy restrictions
  • 45 CFR 164.522(b) – The patient’s right to request confidential communications

Sanctions and penalties for healthcare organizations have not been waived for all other requirements of the HIPAA Privacy, Security, and Breach Notification Rules.

The waiver only exists in the areas covered by the public health emergency declaration for the period identified in the declaration, and only when hospitals have initiated their disaster protocol. The waiver only lasts for 72 hours following the declaration of the emergency.

When the Presidential or Secretarial declaration terminates, the waiver no longer applies, even to those patients still in the care of a hospital and even if the 72-hour time period has not elapsed.

The HHS’ Office for Civil Rights has responded to the declaration by issuing guidance on appropriate sharing of health information in emergency situations, confirming how the HIPAA Privacy Rule applies to healthcare providers in the disaster emergency zone.

OCR has also made a HIPAA Emergency Preparedness Decision Tool available to help healthcare providers determine how the HIPAA Privacy Rule applies.

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HHS Secretary Alex Azar Promises Reforms to Federal Health Privacy Rules

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

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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