HIPAA Updates

OCR Issues Guidance for Providers and Individuals Following Supreme Court Decision on Roe v. Wade

President Biden and U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra recently called on HHS agencies to take action to protect access to sexual and reproductive health care, which includes abortion, pregnancy complications, and other related care, following the decision of the Supreme Court in Dobbs vs. Jackson Women’s Health Organization. The Supreme Court overruled Roe v. Wade and Planned Parenthood v. Casey and took away the right of women to have a safe and legal abortion.

Yesterday, the HHS Office for Civil Rights (OCR) issued new guidance for healthcare providers and patients seeking access to reproductive health care services to ensure patient privacy is protected. The guidance explains that the federal Health Insurance Portability and Accountability Act (HIPAA) requires individuals’ private medical information, which includes information about abortion and other sexual and reproductive health care, is required to be kept private and confidential. That information is classed as protected health information (PHI) under HIPAA and healthcare providers are not required to disclose PHI to third parties.

The guidance also explains the extent to which private medical information is protected on personal cell phones and tablets and includes advice for protecting individuals’ privacy when using period trackers and other health information apps. Concern has been raised by women that health apps on smartphones, such as period trackers, threaten privacy as they disclose geolocation data. That information could potentially be abused by individuals seeking to deny them access to medical care.

“How you access health care should not make you a target for discrimination,” explained HHS Secretary Xavier Becerra. “HHS stands with patients and providers in protecting HIPAA privacy rights and reproductive health care information.” Becerra is encouraging anyone who believes their privacy rights have been violated to file a complaint with OCR and explained that protecting access to health care, which includes abortion care and other forms of sexual and reproductive health care, is now an enforcement priority for OCR.

The guidance for healthcare providers explains that the HIPAA Privacy Rule allows HIPAA-covered entities, which includes healthcare providers, to disclose an individual’s PHI without obtaining authorization from that individual for the purposes of healthcare, payment, and healthcare operations, but other disclosures – to law enforcement officials for example – are only permitted in narrow circumstances, tailored to protect the individual’s privacy and support their access to health care, which includes abortion care. HIPAA-covered entities and their business associates are reminded that they can use and disclose PHI without an individual’s signed authorization, but only for reasons expressly permitted or required by the Privacy Rule. The guidance also explains the restrictions on disclosures of PHI under the HIPAA Privacy Rule when required by law, for law enforcement purposes, and to avert a serious threat to health or safety.

Separate guidance has been issued for individuals about protecting the privacy and security of their health information when using their personal cell phones or tablets. It is important for individuals to understand that most health apps, including period trackers, are not covered by the HIPAA Privacy or Security Rules. That means any personal healthcare data entered, collected, or transmitted by those apps or is stored on smartphones or tablets, is not protected and there are no restrictions on disclosures of that information.

The guidance explains best practices to adopt when using these health apps that will decrease the personal information collected by the apps and limit the potential for disclosures of personal information – including geolocation data – without the individual’s knowledge. The guidance explains how to turn off the location services on Apple and Android devices, and offers advice on selecting apps, browsers, and search engines that prioritize privacy and security.

Information on individuals’ rights to reproductive healthcare is available here.

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OCR Issues Guidance on Audio-Only Telehealth for When the COVID Public Health Emergency Ends

Start preparing now and get your telehealth services HIPAA compliant as when the COVID-19 Public Health Emergency (PHE) ends, the telehealth HIPAA flexibilities stop. That is the advice of the Department of Health and Human Services’ Office for Civil Rights, which released new guidance this week on HIPAA and audio-only telehealth services.

The Period of Enforcement Discretion Will End

In March 2020, the HHS’ Office for Civil Rights issued a Telehealth Notification and said it would be exercising enforcement discretion and would not be imposing sanctions and penalties for HIPAA violations with respect to the good faith provision of telehealth services. The move was intended to make it easier for healthcare organizations to offer telehealth services to patients to help prevent the spread of COVID-19.

OCR permitted healthcare organizations to use remote communication tools for telehealth, which included apps and platforms that would not normally be considered ‘HIPAA-compliant,’ and did not require HIPAA-covered entities to enter into a business associate agreement with the providers of remote communication tools. The notice of enforcement discretion stated that it lasted for the duration of the PHE. When the Secretary of the HHS declares that the COVID-19 PHE no longer exists, or upon the expiration date of the declared PHE, whichever comes sooner, the period of enforcement discretion will end. That means that the continued use of remote communication technologies could potentially violate the HIPAA Rules and could lead to financial penalties and other remedies to resolve the HIPAA violations.

In the new guidance on HIPAA and audio-only telehealth, OCR explains when, and under what circumstances, audio-only telehealth is permitted under HIPAA. OCR confirmed that telehealth services are permitted under HIPAA, but HIPAA-regulated entities should apply reasonable safeguards to protect the privacy of protected health information (PHI), such as ensuring telehealth services are provided in private settings, as far as is possible, and using lowered voices to reduce the potential for incidental disclosures of PHI. It is also necessary to verify the identity of the patient, orally or in writing.

The HIPAA Security Rule May Apply to Telehealth

The HIPAA Security Rule may apply to telehealth. When audio-only telehealth services are provided over standard telephone lines – landlines – the HIPAA Security Rule does not apply, as the information transmitted is not electronic. However, if electronic communication technologies are used, the HIPAA Security Rule does apply, which includes “Voice over Internet Protocol (VoIP) and mobile technologies that use electronic media, such as the Internet, intra-, and extranets, cellular, and Wi-Fi.”

When these technologies are used, the HIPAA Security Rule requires safeguards to be implemented to ensure the confidentiality, integrity, and availability of electronic PHI (ePHI), and risks and vulnerabilities must be identified, assessed, and addressed as part of a covered entity’s risk analysis and risk management processes. OCR suggests that due to the speed at which communication technologies evolve, a robust inventory and asset management process is recommended to identify such technologies and the information systems that use them, as this will help to ensure an accurate and thorough risk analysis.

Business Associate Agreements May be Required

Any vendor that is provided with access to ePHI, or comes into contact with ePHI, is required to enter into a business associate agreement (BAA) with a HIPAA-covered entity. BAAs may be required with vendors providing platforms to support telehealth. A BAA is only required when a telecommunication service provider (TSP) is acting as a business associate. The HIPAA conduit exception applies if the TSP has only transient access to the PHI it transmits. “If the TSP is not also creating, receiving, or maintaining PHI on behalf of the covered entity, and the TSP does not require access on a routine basis to the PHI it transmits in the call, no business associate relationship has been created.  Therefore, a BAA is not needed,” explained OCR in the guidance.

A BAA is required when a TSP is more than a conduit and is not just providing data transmission services, and is either creating, receiving, or maintaining ePHI. In such cases, a BAA is required before the service is used. That applies to remote communication technologies, mobile apps, and Internet and cloud services.

“Audio telehealth is an important tool to reach patients in rural communities, individuals with disabilities, and others seeking the convenience of remote options. This guidance [Guidance on How the HIPAA Rules Permit Covered Health Care Providers and Health Plans to Use Remote Communication Technologies for Audio-Only Telehealth] explains how the HIPAA Rules permit health care providers and plans to offer audio telehealth while protecting the privacy and security of individuals’ health information,” said OCR Director Lisa J. Pino.

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OCR Issues Guidance on Audio-Only Telehealth for When the COVID Public Health Emergency Ends

Start preparing now and get your telehealth services HIPAA compliant as when the COVID-19 Public Health Emergency (PHE) ends, the telehealth HIPAA flexibilities stop. That is the advice of the Department of Health and Human Services’ Office for Civil Rights, which released new guidance this week on HIPAA and audio-only telehealth services.

The Period of Enforcement Discretion Will End

In March 2020, the HHS’ Office for Civil Rights issued a Telehealth Notification and said it would be exercising enforcement discretion and would not be imposing sanctions and penalties for HIPAA violations with respect to the good faith provision of telehealth services. The move was intended to make it easier for healthcare organizations to offer telehealth services to patients to help prevent the spread of COVID-19.

OCR permitted healthcare organizations to use remote communication tools for telehealth, which included apps and platforms that would not normally be considered ‘HIPAA-compliant,’ and did not require HIPAA-covered entities to enter into a business associate agreement with the providers of remote communication tools. The notice of enforcement discretion stated that it lasted for the duration of the PHE. When the Secretary of the HHS declares that the COVID-19 PHE no longer exists, or upon the expiration date of the declared PHE, whichever comes sooner, the period of enforcement discretion will end. That means that the continued use of remote communication technologies could potentially violate the HIPAA Rules and could lead to financial penalties and other remedies to resolve the HIPAA violations.

In the new guidance on HIPAA and audio-only telehealth, OCR explains when, and under what circumstances, audio-only telehealth is permitted under HIPAA. OCR confirmed that telehealth services are permitted under HIPAA, but HIPAA-regulated entities should apply reasonable safeguards to protect the privacy of protected health information (PHI), such as ensuring telehealth services are provided in private settings, as far as is possible, and using lowered voices to reduce the potential for incidental disclosures of PHI. It is also necessary to verify the identity of the patient, orally or in writing.

The HIPAA Security Rule May Apply to Telehealth

The HIPAA Security Rule may apply to telehealth. When audio-only telehealth services are provided over standard telephone lines – landlines – the HIPAA Security Rule does not apply, as the information transmitted is not electronic. However, if electronic communication technologies are used, the HIPAA Security Rule does apply, which includes “Voice over Internet Protocol (VoIP) and mobile technologies that use electronic media, such as the Internet, intra-, and extranets, cellular, and Wi-Fi.”

When these technologies are used, the HIPAA Security Rule requires safeguards to be implemented to ensure the confidentiality, integrity, and availability of electronic PHI (ePHI), and risks and vulnerabilities must be identified, assessed, and addressed as part of a covered entity’s risk analysis and risk management processes. OCR suggests that due to the speed at which communication technologies evolve, a robust inventory and asset management process is recommended to identify such technologies and the information systems that use them, as this will help to ensure an accurate and thorough risk analysis.

Business Associate Agreements May be Required

Any vendor that is provided with access to ePHI, or comes into contact with ePHI, is required to enter into a business associate agreement (BAA) with a HIPAA-covered entity. BAAs may be required with vendors providing platforms to support telehealth. A BAA is only required when a telecommunication service provider (TSP) is acting as a business associate. The HIPAA conduit exception applies if the TSP has only transient access to the PHI it transmits. “If the TSP is not also creating, receiving, or maintaining PHI on behalf of the covered entity, and the TSP does not require access on a routine basis to the PHI it transmits in the call, no business associate relationship has been created.  Therefore, a BAA is not needed,” explained OCR in the guidance.

A BAA is required when a TSP is more than a conduit and is not just providing data transmission services, and is either creating, receiving, or maintaining ePHI. In such cases, a BAA is required before the service is used. That applies to remote communication technologies, mobile apps, and Internet and cloud services.

“Audio telehealth is an important tool to reach patients in rural communities, individuals with disabilities, and others seeking the convenience of remote options. This guidance [Guidance on How the HIPAA Rules Permit Covered Health Care Providers and Health Plans to Use Remote Communication Technologies for Audio-Only Telehealth] explains how the HIPAA Rules permit health care providers and plans to offer audio telehealth while protecting the privacy and security of individuals’ health information,” said OCR Director Lisa J. Pino.

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Healthcare Groups Provide Feedback on HITECH Recognized Security Practices

Earlier this year, the HHS’ Office for Civil Rights issued a request for information (RFI) on how the financial penalties for HIPAA violations should be distributed to individuals who have been harmed by those HIPAA violations, and the “recognized security practices” under the amended Health Information Technology for Economic and Clinical Health (HITECH) Act. The comment period has now closed, and OCR is considering the feedback received.

Background

It has long been OCR’s intention to distribute a proportion of the funds raised through its HIPAA enforcement actions to victims of those HIPAA violations; however, to date, OCR has not developed a methodology for doing so and requested feedback on a method for distributing the funds to ensure they are directed to victims effectively.

In January 2021, the HITECH Act was amended by Congress to encourage healthcare organizations to adopt recognized security practices. The amendment called for the Secretary of the Department of Health and Human Services to consider whether recognized security practices had been adopted by a HIPAA-regulated entity for no less than 12 months previously, when making certain determinations. Recognized security practices are those outlined by the National Institute of Standards and Technology (NIST), HIPAA Security Rule, and privacy and security frameworks.

Essentially, if recognized security practices have been adopted and have been continuously in place for at least 12 months, financial penalties could be reduced or avoided altogether, and the length and extent of audits and compliance investigations would be reduced.

Feedback from Healthcare Industry Groups

Several healthcare industry groups responded to the RFI and provided feedback, including the Healthcare Information and Management Systems Society (HIMSS), Medical Management Association MGMA, and the Connected Health Initiative (CHI).

HIMSS

HIMSS has welcomed the amendments to the HITECH Act and in its letter to the HHS stressed the importance of a unified approach to healthy cybersecurity and information privacy practices, as emphasized in the HITECH Security Practices.

HIMSS recommended “OCR implement policies that only afford enforcement discretion to situations involving use of security best practices as that discretion applies to safeguarding electronic protected health information (PHI) and not to other areas that are within the scope of HIPAA.”

HIMSS recommends OCR should foster innovation in standards by recognizing the value of adherence to widely accepted cybersecurity frameworks and standards, such as the NIST Cybersecurity Framework and the HITRUST Common Security Framework, rather than trying to define a fixed set of cybersecurity practices, which has the potential to become outdated in a rapidly changing threat landscape. OCR should also align its work with other federal agencies to improve best practices for healthcare.

HIMSS expressed concern that “a strict interpretation of security practices in place continuously over a 12-month period could have the unintended consequence of discouraging the adoption of new methods during that time frame.” HIMSS stressed the importance of encouraging organizations to update security practices regularly as new technologies or methodologies emerge and giving them the flexibility to update processes throughout the year to meet ever-changing cybersecurity best practices without fear that they may run afoul of the requirement for consistent and continuous use. “HIMSS recommends OCR distinguish between confirming that a control is in place and narrowly defining how the control is implemented.”

With respect to the financial penalties, HIMSS suggested OCR should earmark some of the fine amounts for helping to fund and distribute educational materials and other resources to HIPAA-regulated entities to ensure that all organizations have the knowledge and resources to prevent or mitigate cyberattacks.

MGMA

MGMA explained in a letter to HHS Secretary Xavier Becerra that it represents a wide range of medical groups and hundreds of thousands of physicians, and has been working diligently to improve education on cybersecurity best practices. MGMA said its members are becoming more vigilant and are voluntarily taking steps to protect themselves and their patients and welcomes the efforts of the HHS to understand and consider those measures when making certain determinations.

MGMA has made three key recommendations. The HHS should provide HIPAA-regulated entities with the flexibility to choose which recognized security practices to adopt, as there are vast differences in the technical and financial capabilities of medical groups, which can include small private practices in rural areas to large regional and national health systems, and the full spectrum of physician specialties and organizational forms. If specific recognized security systems are required, there could be unintended consequences stemming from the increased cost and administrative burden. Medical groups need to balance security with their ability to stay financially viable and avoid interruptions to patient care. MGMA has recommended the HHS does not mandate what constitutes recognized security practices any further, and that the HHS should accept and not limit the broad statutory definition of the term recognized security practices.

MGMA has requested OCR provide best practices and education, including sample frameworks and checklists, that include real-world approaches for medical groups to implement acknowledged cybersecurity policies into their practices, and has also requested the HHS ensure potential requirements are consistent with other programs, such as the Office of National Coordinator for Health Information Technology (ONC) rulemaking to prohibit “information blocking.”

CHI

CHI said it supports OCR’s efforts to encourage the adoption of recognized security practices and for those practices to be considered as a mitigating factor when investigating data breaches, complaints, and reviews for potential HIPAA violations, but suggests that the 2021 HITECH Act revision should only apply to HIPAA compliance enforcement actions and audits.

Since current security standards will evolve over time, CHI recommends that OCR consider new and emerging risk management security standards in its recognized security practices, rather than specifying a set of security practices. CHI has also requested OCR provide up-to-date and clear information on the obligations of healthcare organizations under HIPAA, in light of the many changes that have occurred across the industry since the HITECH Act was passed, including changes to technology.

For instance, the HIPAA Privacy and Security Rules were introduced prior to the release of the first iPhone, and there is a lack of clarity about how HIPAA applies to mobile environments, which can deter healthcare providers from adopting patient-centered technologies and can prevent patients from fully benefiting from mobile technologies. Further guidance is needed to help healthcare providers adopt new technologies that enable care coordination and ensure compliance.

“OCR has created key guidance for mobile developers and those interested in the intersection between information technology and healthcare. OCR’s outreach focus is an educational campaign for that community, and we see vast improvement in the understanding, from connected health companies, of their roles and responsibilities under the HIPAA Privacy Rules,” explained CHI. However, similar educational campaigns are required for providers and patients.

CHI has requested the HHS make no revisions to the HIPAA Privacy Rule that require disclosures for any additional purposes besides to the individual when the individual exercises his/her right of access under the Rule, or to HHS for purposes of enforcement of the HIPAA Rules, as this could place an unnecessary burden on HIPAA-regulated entities and could lessen the protections for the privacy of individuals’ PHI.

CHI has also requested OCR provide sample business associate agreement language for developers and providers and should ensure that HIPAA does not prevent innovations in AI technology.

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NIST Seeks Comment on Planned Updates to HIPAA Security Rule Implementation Guidance

The National Institute of Standards and Technology (NIST) is planning on revising and updating its guidance on implementing the HIPAA Security Rule and is seeking comment from stakeholders on aspects of the guidance that should be changed.

NIST published the guidance – NIST Special Publication (SP) 800-66, Revision 1, An Introductory Resource Guide for Implementing the Health Insurance Portability and Accountability Act (HIPAA) Security Rule – in October 2008. During the past 13 years, cybersecurity has evolved and the threat landscape has changed considerably. NIST’s cybersecurity resources have also evolved during that time and an update to the guidance is now long overdue.

NIST will be updating the guidance to reference its new cybersecurity resources, will amplify awareness of non-NIST resources relevant to compliance with the HIPAA Security Rule, and will update its implementation guidance for HIPAA-covered entities and business associates.

Specifically, NIST has requested comment from stakeholders on their experiences applying and using the resource guide, including the parts of the guidance that have been helpful and those that have not, with the reasons why.

NIST wants to hear from covered entities and business associates that have used the guidance and have found key concepts to be missing, and for stakeholders who found the guidance not to be applicable to their organization to provide information on how it can be made more useful, relatable, and actionable to a wider range of audiences.

Covered entities and business associates have complied with the HIPAA Security Rule in a range of different ways. NIST is seeking information on any tools, resources, and techniques that have been adopted that have proven useful, and for covered entities that have enjoyed successes with their compliance programs to share information on how they manage compliance and security simultaneously, assess risks to ePHI, determine whether the security measures implemented are effective at safeguarding ePHI, and how they document demonstrating adequate implementation. NIST also wants to hear from any covered entity or business associate that has implemented recognized security practices that have diverged from compliance with the HIPAA Security Rule.

Stakeholders are invited to submit comment through June 15, 2021 for consideration ahead of the proposed update. Submitted comments will be considered and implemented as far as is practicable.

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HHS Adopts Changes to 42 CFR Part 2 Regulations to Improve Care Coordination

The Confidentiality of Substance Use Disorder Patient Records regulations (42 CFR Part 2) have been revised by the Department of Health and Human Services’ Substance Abuse and Mental Health Services (SAMHSA).

The 42 CFR Part 2 regulations, first promulgated in 1975, were written at a time when there was great concern that information relating to substance use disorder could be used against an individual. The main purpose of 42 CFR Part 2 was to ensure that a person who seeks help and receives treatment for substance use disorder is not placed at any greater risk or is made more vulnerable than a person who does not seek treatment. Under the 42 CFR Part 2 regulations, before information relating to a substance use disorder treatment program can be shared, consent must be obtained from the patient in writing, except in limited circumstances.

42 CFR Part 2 was important at the time and remains so, but a lot has changed since 42 CFR Part 2 took effect. Many healthcare providers find the regulations burdensome, they can hamper care coordination, and can put a patient’s safety at risk.

42 CFR Part 2 protects the privacy of patients, but the regulations often discourage primary care providers from providing care to SUD patients or recording SUD information. In some cases, physicians are required to fill out 11 different kinds of paperwork related to 42 CFR Part 2 and the treatment of SUD records is itself stigmatizing.

Many healthcare industry stakeholders have called for 42 CFR Part 2 regulations to be updated and aligned with HIPAA, which also serves to protect the privacy of patients and ensure the confidentiality of healthcare data.

In 2019, the HHS proposed changes to 42 CFR Part 2 regulations to support care coordination while improving privacy protections for SUD patients. After seeking comment from stakeholders, some of the proposed changes have now been adopted.

The updates do not change the basic framework for the protection of SUD records created by federally funded treatment programs and restrictions are still in place to prevent the use of SUD patient records in criminal prosecution against the patient. Written consent is still required from a patient before their SUD records can be shared, except in very limited circumstances. Records can only be shared with out consent if a court order is received, in a genuine medical emergency, and for the purpose of scientific research, audits, and SUD program evaluations.

The changes align 42 CFR Part 2 more closely with HIPAA and are intended to make it easier for healthcare providers to share SUD records if consent has been obtained from a patient. The changes will help to improve patient safety, support better care coordination, improve claims management and training, and ensure quality improvement, while reducing the burden on healthcare providers.

This reform will help make it easier for Americans to discuss substance use disorders with their doctors, seek treatment, and find the road to recovery,” said HHS Secretary Alex Azar, in a statement“Thanks to the valuable input of stakeholders, our final rule will make it easier for Americans to seek and receive treatment while lifting burdens on providers and maintaining important privacy protections.”

Information about the changes and why they have been made are detailed in an HHS fact sheet. The key changes to 42 CFR Part 2 regulations are detailed below:

  • Treatment records created by non-Part 2 providers based on their own patient encounter(s) are explicitly not covered by Part 2, unless any SUD records previously received from a Part 2 program are incorporated into such records. Segmentation or holding a part of any Part 2 patient record previously received can be used to ensure that new records created by non-Part 2 providers will not become subject to Part 2.
  • When an SUD patient sends an incidental message to the personal device of an employee of a Part 2 program, the employee will be able to fulfill the Part 2 requirement for “sanitizing” the device by deleting that message.
  • An SUD patient may consent to disclosure of the patient’s Part 2 treatment records to an entity (e.g., the Social Security Administration), without naming a specific person as the recipient for the disclosure.
  • Disclosures for the purpose of “payment and health care operations” are permitted with written consent, in connection with an illustrative list of 18 activities that constitute payment and health care operations now specified under the regulatory provision.
  • Non-OTP (opioid treatment program) and non-central registry treating providers are now eligible to query a central registry, in order to determine whether their patients are already receiving opioid treatment through a member program.
  • OTPs are permitted to enroll in a state prescription drug monitoring program (PDMP), and permitted to report data into the PDMP when prescribing or dispensing medications on Schedules II to V, consistent with applicable state law.

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HHS Increases Civil Monetary Penalties for HIPAA Violations in Line with Inflation

The U.S Department of Health and Human Services’ has increased the civil monetary penalties for HIPAA violations to take inflation into account, in accordance with the Inflation Adjustment Act.

The final rule was issued and took effect on Tuesday November 5, 2019. This rule increases the civil monetary penalties for HIPAA violations that occurred on or after February 18, 2019. Under the new penalty structure, the increases from 2018 to 2019 are detailed in the table below:

Penalty Tier Level of Culpability Minimum Penalty per Violation

(2018 » 2019)

Maximum Penalty per Violation

(2018 » 2019)

New Maximum Annual Penalty

(2018 » 2019)*

1 No Knowledge $114.29 » $117 $57,051 » $58,490 $1,711,533 » $1,754,698
2 Reasonable Cause $1,141 » $1,170 $57,051 » $58,490 $1,711,533 » $1,754,698
3 Willful Neglect – Corrective Action Taken $11,410 » $11,698 $57,051 » $58,490 $1,711,533 » $1,754,698
4 Willful Neglect – No Corrective Action Taken $57,051 » $58,490 $1,711,533 » $1,754,698 $1,711,533 » $1,754,698

Penalties for HIPAA violations that occurred prior to February 18, 2019 have increased to $159 per violation, with an annual cap of $39,936 per violation category.

Earlier this year, the HHS’ Office for Civil Rights announced that it had reduced the penalties for HIPAA violations in certain tiers after a review of the wording of the HITECH Act. The maximum penalty for a HIPAA violation in the highest tier remained at $1.711 million, per violation category per year. Prior to the review, the maximum HIPAA violation penalty was $1.711 million in all four penalty tiers.

*The notice of enforcement discretion, announced on April 30, 2019, capped the maximum annual penalties at $10,000 (Tier 1), $100,000 (Tier 2), $250,000 (Tier 3), and $1,711,533 (Tier 4). The notice of enforcement discretion stated that the reviewed penalty tiers would also be adjusted in line with inflation. The multiplier used by OCR to calculate the cost-of-living increases was based on the Consumer Price Index for all Urban Consumers (CPI–U) for October 2019, which was 1.02522. That would make the new maximum penalties under the notice of enforcement discretion $10,252.20 (Tier 1), $102,522 (Tier 2), $256,305 (Tier 3), and $1,754,698 (Tier 4).

While OCR’s notice of enforcement discretion states that OCR will be adopting the new, revised penalties, this has yet to be made official and is pending further rulemaking. The notification of enforcement discretion creates no legal obligations and no legal rights, so OCR could therefore legally use the above maximum penalty amount of $1,754,698 per violation category, per year across all penalty tiers.

Full details of the new penalty structures have been published in the Federal Register for all agencies, including the FDA, ACF, HRSA, AHRQ, OIG, CMS, and OCR and can be viewed here (PDF).

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Roger Severino Gives Update on OCR HIPAA Enforcement Priorities

Roger Severino, Director of the HHS’ Office for Civil Rights, has given an update on OCR’s HIPAA enforcement priorities at the OCR/NIST 11th Annual HIPAA Conference in Washington D.C.

Severino confirmed that one of OCR’s top policy initiatives is still enforcing the rights of patients under the HIPAA Privacy Rule and ensuring they are given timely access to their health information at a reasonable cost.

Under HIPAA, patients have the right to view and check their medical records and obtain a copy of their health data, yet there are still healthcare organizations that are making this difficult. OCR has already agreed to settle one case this year with a HIPAA-covered entity that failed to provide a patient with a copy of her health information. OCR had to intervene before those records were provided to the patient. The entity in question, Bayfront Health St Petersburg, paid a financial penalty of $85,000 to resolve the HIPAA violation.

More financial penalties will be issued to covered entities that fail to comply with this important provision of HIPAA. Severino confirmed that Bayfront Health’s financial penalty was the first in a series of penalties for covered entities that are not providing patients with access to their health data within 30 days of the request being received.

OCR has issued guidance to help covered entities comply with this aspect of HIPAA, but now the time has come “for serious enforcement,” explained Severino.

Severino also explained that patients must be allowed to have their health data sent to health apps. The requests should only be denied if the app poses a security risk to the covered entity. Severino confirmed a covered entity is not liable for what happens to PHI after a disclosure to a health app at the patient’s request.

In many cases, patients are not being denied access to their medical records and requests for copies of medical records are being honored, but patients are being charged excessive amounts. In 2016, OCR issued guidance on the amounts that healthcare organizations can charge for providing copies of medical records and further clarification was also issued on the fee structures that can be adopted. Financial penalties for overcharging for copies of medical records can be expected.

The crackdown on patient access issues is part of the HHS Regulatory Sprint to Coordinated Care initiative and fits in with the Trump Administration’s drive to improve transparency of healthcare costs and the reduction of the cost of healthcare in the United States.

A prop is always useful for getting a point across. In this case Severino used a medical boot that he purchased to aid recovery from a torn Achilles tendon. Severino said he was advised by his doctor to purchase the boot and paid his doctor $430 for the treatment aid. He explained that he later looked online and found the exact same boot for sale on Amazon for $70, saying “This boot represents what’s wrong with price transparency.”

OCR is looking at how HIPAA can be updated to address this problem, such as requiring healthcare providers and health plans to provide information about the expected out-of-pocket costs for medical services or equipment before those items or services are provided to patients.

Contractors provide quotes for work in advance and banks provide customers with information on the costs of mortgages before providing the funds, but that doesn’t always happen in healthcare. That is something that needs to change.

Severino also touched on the issue of cybersecurity. Phishing and ransomware attacks cause a high percentage of healthcare data breaches and in many cases the attacks can be prevented by practicing good cybersecurity hygiene.

Ransomware is often installed through the exploitation of vulnerabilities in Remote Desktop Protocol. The failure to address those RDP vulnerabilities has led to several major healthcare ransomware attacks and data breaches.

Phishing attacks have been a major cause of healthcare data breaches for several years. It is not possible to prevent all attacks, but by complying with HIPAA, risk can be significantly reduced. HIPAA calls for covered entities to provide employees with training to help them identify and avoid phishing threats. Severino explained that training is critical, as is conducting phishing simulation exercises to find out how susceptible employees are to phishing.

Other cybersecurity failures that could prevent data breaches include the lack of multi-factor authentication, poor access controls, and the failure to promptly terminate access to systems when employees leave the company.

2019 may have only seen four OCR financial penalties issued to date to resolve HIPAA violations but the year is far from over. Further penalties will be announced this year, including one $2.1 million civil monetary penalty.

Severino did not confirm the reason for the penalty or provide any details, other than saying a final determination has been reached and the penalty will be announced by the department soon.

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Sen. Rand Paul Introduces National Patient Identifier Repeal Act

Sen. Rand Paul, M.D., (R-Kentucky) has introduced a new bill that attempts to have the national patient identifier provision of HIPAA permanently removed due to privacy concerns over the implementation of such a system.

Today, HIPAA is best known for its healthcare data privacy and security regulations, but the national patient identifier system was proposed in the original HIPAA legislation of 1996 as a measure to facilitate data sharing and help reduce wastage in healthcare.

The provision called for the HHS to “adopt standards providing for a standard unique health identifier for each individual, employer, health plan, and healthcare provider for use in the health care system.” However, in 1998, former Congressman Ron Paul (R-Texas), Sen. Rand Paul’s father, introduced a proposal which called for a ban on funding the development and implementation of such a system. The ban was introduced into the Congressional budget for 1999 and has been written into all Congressional budgets ever since.

This year there was hope that the ban would finally be removed following a June amendment to the House of Representative’s appropriation bill for fiscal year 2020. The amendment received strong bipartisan support and it was hoped that the Senate would follow the House’s lead and have the ban finally lifted. However, on September 18, 2019, the Senate appropriations subcommittee’s proposed budget bill for fiscal year 2020 included the same language as previous years and, as it stands, the ban looks set to remain in place for at least another year.

Sen. Rand Paul’s National Patient Identifier Repeal Act seeks to repeal the HIPAA provision, which Sen Paul believes will place the privacy of Americans at risk. He considers the provision to be dangerous, as it would allow a government-issued ID number to be linked with the private medical histories of every man, woman, and child in America.

It is for the very same reason that dozens of healthcare industry stakeholder groups want the national patient identifier introduced, as without such an identifier, it is difficult to accurately match medical records with the correct patient. Those seeking to have the ban lifted believe it will improve the accuracy of health information exchange and improve security and patient safety.

Sen. Paul disagrees, as he believes the potential privacy risks are too great. “As a physician, I know firsthand how the doctor-patient relationship relies on trust and privacy, which will be thrown into jeopardy by a national patient ID,” explained Sen. Paul. “Considering how unfortunately familiar our world has become with devastating security breaches and the dangers of the growing surveillance state, it is simply unacceptable for government to centralize some of Americans’ most personal information.”

Industry associations such as the College of Healthcare Information Management Executives (CHIME) have stepped up efforts to have the ban lifted due to the difficulties matching medical records with patients.

CHIME CEO, Russ Branzell explained that Congress has already approved a healthcare identifier for Medicare beneficiaries, but a national identifier is also required. “The patient identification conversation is one about saving lives and unlocking the potential for technology to revolutionize healthcare while cutting costs.” He has called Sen. Paul’s views on the national patient identifier “antiquated and from some bygone era.”

While many industry associations share Branzell’s view, Sen. Paul’s bill has received support from certain privacy advocacy groups, including the Citizen’s Council for Health Freedom. Advocates of the removal of the HIPAA provision believes the centralization of patient information would greatly increase the risk of security breaches and could allow hackers to steal individuals’ lifelong healthcare records and such a system would allow unprecedented tracking of Americans through their healthcare records.

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