Privacy, Security, and Compliance News

Failure to Terminate Access of Former Employee = $111.4K

I must say I’m astonished to see this one — this is a topic I’ve been harping about for some time now, with the message mostly falling on deaf ears.  But this enforcement action validates my concern.

On December 11, 2018, the pace of HIPAA enforcement actions continued to increase, with the HHS announcement that Pagosa Springs Medical Center (PSMC) agreed to pay $111,400 and adopt a substantial corrective action plan to settle potential HIPAA violations.  PSMC is a critical access hospital, that at the time of OCR’s investigation, provided more than 17,000 hospital and clinic visits annually and employs more than 175 individuals.

The complaint alleged that a former PSMC employee continued to have remote access to PSMC’s web-based scheduling calendar, which contained patients’ electronic PHI, after separation of employment. OCR’s investigation revealed that PSMC impermissibly disclosed the ePHI of 557 individuals to its former employee and to the web-based scheduling calendar vendor without a HIPAA required business associate agreement in place.

Covered entities that do not have or follow procedures to terminate information access privileges upon employee separation risk a HIPAA enforcement action.  Covered entities must also evaluate relationships with vendors to ensure that business associate agreements are in place with all BAs before disclosing PHI.  The resolution agreement and corrective action plan may be found on the OCR website at http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/pagosasprings.

Share PHI with Unknown Vendor, No BAA = Breach = $500K

On December 4, 2018, HHS OCR announced that Advanced Care Hospitalists PL (ACH) has agreed to pay $500,000 and to adopt a substantial corrective action plan to settle potential HIPAA violations. ACH provides contracted internal medicine physicians to hospitals and nursing homes in west central Florida.  ACH provided services to more than 20,000 patients annually and employed between 39 and 46 individuals during the relevant timeframe.

Between November 2011 and June 2012, ACH engaged the services of an individual that represented himself to be a representative of a Florida-based company named Doctor’s First Choice Billings, Inc. (First Choice). The individual provided medical billing services to ACH using First Choice’s name and website, but allegedly without any knowledge or permission of First Choice’s owner.

On February 11, 2014, a local hospital notified ACH that patient information was viewable on the First Choice website, including name, date of birth and social security number.  ACH filed a breach notification report with OCR on April 11, 2014, stating that 400 individuals were affected; however, after further investigation, ACH filed a supplemental breach report stating that an additional 8,855 patients could have been affected.

ACH never entered into a business associate agreement with the individual providing medical billing services to ACH, as required by HIPAA and failed to adopt any policy requiring business associate agreements until April 2014.  Although ACH had been in operation since 2005, it had not conducted a risk analysis or implemented security measures or any other written HIPAA policies or procedures before 2014

The resolution agreement and corrective action plan may be found on the OCR website at http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/ACH/index.html

Allergy Doctor Goes Public With Patient Information = $125K

On November 26, 2018, HHS OCR announced that Allergy Associates of Hartford, P.C. (Allergy Associates), has agreed to pay $125,000 and to adopt a corrective action plan to settle potential HIPAA Privacy Rule violations. Allergy Associates is a health care practice that specializes in treating individuals with allergies, and is comprised of three doctors at four locations across Connecticut.

In February 2015, a patient of Allergy Associates contacted a local television station to speak about a dispute that had occurred between the patient and an Allergy Associates’ doctor. The reporter subsequently contacted the doctor for comment and the doctor impermissibly disclosed the patient’s protected health information to the reporter.

OCR’s investigation found that the doctor’s discussion with the reporter demonstrated a reckless disregard for the patient’s privacy rights and that the disclosure occurred after the doctor was instructed by Allergy Associates’ Privacy Officer to either not respond to the media or respond with “no comment.” Additionally, OCR’s investigation revealed that Allergy Associates failed to take any disciplinary action against the doctor or take any corrective action following the impermissible disclosure to the media.

The resolution agreement and corrective action plan may be found on the OCR website at http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/allergyassociates/index.html

Anthem Hit With Huge(?) Penalty: 20 cents per Person = $16M

On October 15, 2018, HHS OCR announced that Anthem, Inc. has agreed to pay $16 million and take substantial corrective action to settle potential violations of HIPAA after a series of cyberattacks led to the largest U.S. health data breach in history and exposed the electronic protected health information of almost 79 million people.  The $16 million settlement eclipses the previous high of $5.55 million paid to OCR in 2016.

Anthem discovered cyber-attackers had infiltrated their system through spear phishing emails sent to an Anthem subsidiary after at least one employee responded to the malicious email and opened the door to further attacks. OCR’s investigation revealed that between December 2, 2014 and January 27, 2015, the cyber-attackers stole the ePHI of almost 79 million individuals, including names, social security numbers, medical identification numbers, addresses, dates of birth, email addresses, and employment information.

In addition to the impermissible disclosure of ePHI, OCR’s investigation revealed that Anthem failed to conduct an enterprise-wide risk analysis, had insufficient procedures to regularly review information system activity, failed to identify and respond to suspected or known security incidents, and failed to implement adequate minimum access controls to prevent the cyber-attackers from accessing sensitive ePHI, beginning as early as February 18, 2014.

The resolution agreement and corrective action plan may be found on the OCR website at http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/anthem/index.html.

HHS Updates the HIPAA Audit Protocol in July, Tells No One

SURPRISE!  HHS OCR Updated the HIPAA Audit Protocol in July 2018.  There was no announcement, and no summary of the changes is provided.  So I began the process of updating my HIPAA Audit Protocol spreadsheet only to discover that the latest posting does not easily copy and paste into a spreadsheet the way the previous one did.  Thanks a lot, HHS!  

Anyway, with a cursory review I don’t see obvious changes, and at the end of next week I’m going to be at the annual NIST/OCR HIPAA Security love fest in Washington, DC, where I can try to find someone from HHS who can say what the difference between the 2016 and 2018 versions is, so I don’t have to spend a day recreating the whole thing again.  (Ugh!)

Anyway, despite the pain, I’m glad a question from a reader revealed to me that they had updated the HIPAA Audit Protocol in some (unknown) way.  How was I expected to hear about it — rumors on the street?  What happened to press releases?  Information?  Oh well…  So here’s the link, and please let me know if you have a summary of the changes!  https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/audit/protocol/index.html

Update: There are changes in 13 of the questions, mostly in Breach Notification and some in Privacy.  Please let me know if you’d like me to e-mail you a copy of the new 2018 HIPAA Audit Protocol in Excel format.

Busy Time for Medical Device and IoT Security Guidance

In September, 2018, NIST presented Draft NISTIR 8228, Considerations for Managing Internet of Things (IoT) Cybersecurity and Privacy Risks (available at https://nvlpubs.nist.gov/nistpubs/ir/2018/NIST.IR.8228-draft.pdf ), including IoT devices used in healthcare settings, and is open for comments though October 24, 2018.  See the article in HealthITSecurity at https://healthitsecurity.com/news/nist-warns-about-cybersecurity-vulnerabilities-in-healthcare-iot   

On October 1, 2018 the FDA released a playbook for medical device security developed by MITRE that can enable healthcare organizations to plan for and respond to cybersecurity incidents involving medical devices.  The MITRE playbook Medical Device Cybersecurity Regional Incident Preparedness and Response Playbook Version 1.0 October 2018 is available through https://www.mitre.org/publications/technical-papers/mitre-creates-playbook-on-medical-device-cybersecurity and an article on the release in HealthITSecurity is at https://healthitsecurity.com/news/fda-unveils-mitres-medical-device-security-playbook  A Statement from FDA Commissioner Scott Gottlieb, M.D. on FDA’s efforts to strengthen the agency’s medical device cybersecurity program as part of its mission to protect patients is available at https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm622074.htm 

In addition, a KLAS/CHIME survey shows providers lack confidence in medical device cybersecurity — is it any wonder?  See the article in Modern Healthcare (registration required) at http://www.modernhealthcare.com/article/20181005/NEWS/181009942  Results suggest that the majority of surveyed provider groups attributed security problems to the device manufacturers, especially if the devices can’t be updated or patched, and that the problem is widespread.  

Clearly, it’s time to look at all the various devices and IoT “things” that may need a serious update to protect patient safety and privacy.  This is not a minor issue.

Health Data Access Wizard Simplifies Records Requests

On September 25, 2018, it was announced that fourteen organizations including AHIMA, X4 Health, CareJourney, and CARIN Alliance recently launched a new health IT tool designed to offer users an easier way to request EHR patient data.  The tool is designed to help patients avoid the cumbersome process of filling out paperwork to obtain copies of their EHRs from providers in apps or other secure locations.

The prototype tool is the Health Record Request Wizard, designed to streamline and simplify patient EHR request processes. The Wizard also helps patients receive their EHR data in digital formats.

See the article in EHR Intelligence, at https://ehrintelligence.com/news/14-healthcare-stakeholders-launch-ehr-patient-data-request-tool and try out the prototype tool at https://www.healthrecordwizard.com   

State AGs Take Aim Using HIPAA for Breach Violations

Where HHS Office for Civil Rights has seemed to be slacking off in enforcement recently, state Attorneys General are taking up the slack and issuing penalties for violations of HIPAA and other state laws.  The latest, reported on September 24, 2018, is a settlement by the Massachusetts AG with UMass Memorial for $350,000 for violations of HIPAA, the Consumer Protection Act, and the Massachusetts Data Security Law when they failed to properly protect patients’ information from access by identity thieves even after the activity had been reported.  See the story at:  https://healthitsecurity.com/news/umass-memorial-to-pay-230000-for-healthcare-data-breaches  

Allowing TV Crews Into Boston Hospitals = $1M in Penalties

On September 20, 2018 the Department of Health and Human Services, Office for Civil Rights (OCR) announced that it has reached separate settlements with Boston Medical Center (BMC), Brigham and Women's Hospital (BWH), and Massachusetts General Hospital (MGH) for compromising the privacy of patients’ protected health information (PHI) by inviting film crews on premises to film an ABC television network documentary series, without first obtaining authorization from patients. Collectively, the three entities paid OCR $999,000 to settle potential HIPAA violations.  Each entity will provide workforce training as part of a corrective action plan that will include OCR’s guidance on disclosures to film and media:  http://www.hhs.gov/hipaa/for-professionals/faq/2023/film-and-media/index.html  

This is the second HIPAA case involving an ABC medical documentary television series, the previous being OCR’s April 16, 2016 settlement with New York-Presbyterian Hospital in association with the filming of “NY Med.”

The respective Resolution Agreements and Corrective Action Plans may be found on the HHS website at: https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/bostoncases/index.html

New Guidance from NIST on Wireless Infusion Pumps

On August 21, 2018, the NIST National Cybersecurity Center of Excellence (NCCoE) published Special Publication (SP) 1800-8, Securing Wireless Infusion Pumps in Healthcare Delivery Organizations.  The title says it all.  If you use wireless infusion pumps or are thinking about using them, best to consult this.  See  https://www.nccoe.nist.gov/projects/use-cases/medical-devices  

Final NIST SP1800-1 on EHRs and Mobile Devices Released

On July 27, 2018, the National Institute of Standards and Technology National Cybersecurity Center of Excellence (NCCoE) released the final version 1 of Special Publication 1800-1, Securing Electronic Health Records on Mobile Devices, which includes valuable information on establishing strong authentication and secure practices when accessing EHR systems remotely from mobile devices.  

While much of the report is technical in nature, such that it can be used to guide development of secure implementations, the overall goals of security AND ease of use are well-explained, and a questionnaire for EHR providers is included to help assess the security posture of an EHR vendor.

The NIST page with the Abstract of SP 1800-1 is available at:  https://www.nist.gov/publications/securing-electronic-health-records-mobile-devices  and the publication, including all the subsections, is available at:  https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.1800-1.pdf  

Annual NIST/OCR HIPAA Security Conference October 18-19

On July 5, 2018 the National Institute of Standards and Technology and the HHS Office for Civil Rights announced the (11th annual) 2018 OCR/NIST Conference: Safeguarding Health Information: Building Assurance through HIPAA Security, to be held October 18-19, 2018 at the Hyatt Regency, Washington, D.C.  Note that the registration ends at 11:59 PM on October 11.  This is the one event I always attend every year.  See:   https://www.nist.gov/news-events/events/2018/10/safeguarding-health-information-building-assurance-through-hipaa-security  

New California Consumer Privacy Act set for January 1, 2020

On June 28, 2018, the California Consumer Privacy Act of 2018 was signed into law, going into effect at the beginning of 2020, offering many of the same protections for personal information contained within the EU’s GDPR.  You’ll need to go through a similar evaluation process for personal information, but instead of, “is this individual an E.U. resident?” the question becomes, “is this individual a California resident?”

Luckily, information subject to HIPAA is not subject to CCPA, but non-PHI will still be controlled by CCPA, and will need evaluation.  Expect this kind of legislation to spread, as California is typically the trend-setter for privacy and security legislation.  One of the many articles on this topic is available at:  http://www.modernhealthcare.com/article/20180702/NEWS/180709994  

Updated Common Rule for Research Effective January 21, 2019

The revised Common Rule on the use of personal information in research was adopted June 19, 2018 and will go into effect January 21, 2019, finally, after several delays and adjustments.  

Prior to the effective date, institutions may implement three of the “burden-reducing” changes for studies begun prior to January 21, 2019 that will transition to compliance with the revised requirements

  • the revised definition of ‘research,’ which deems certain activities not to be research covered by the Common Rule; 
  • the elimination of the requirement for annual continuing review with respect to certain categories of research; and 
  • the elimination of the requirement that institutional review boards (IRBs) review grant applications or other funding proposals related to the research,” only .

The changes to the Common Rule for secondary research enable low-risk medical studies, such as observational studies designed to find patterns in patient record to improve how procedures are performed.  The changes also encompass: 

  • requiring the most important information regarding a study to be explained clearly and concisely, and in a way that a “reasonable person” could understand; 
  • permitting researchers to seek broad consent, which will help improve the availability of biospecimens and patient-reported data (including real-time data from mobile applications and devices) for secondary research; 
  • clarifying that certain public health surveillance activities are outside the scope of the Common Rule, so that the spread of disease can be more easily monitored; 
  • and providing a new option meant to help screening of potential participants, so patients who qualify for new treatments are more likely to learn about them.

One of many articles on this topic is at:  https://healthitsecurity.com/news/common-rules-final-version-exempts-certain-hipaa-covered-entities  

An article on new HHS OCR guidance issued June 12, 2018 regarding HIPAA and research is at:  https://healthitsecurity.com/news/ocr-guidance-tackles-phi-research-use-under-hipaa-privacy-rule  

MD Anderson Cancer Center hit with $4.3 million HIPAA Fine

On June 14, 2018, a U.S. Department of Health and Human Services Administrative Law Judge (ALJ) ruled that The University of Texas MD Anderson Cancer Center (MD Anderson) violated the HIPAA Privacy and Security Rules and granted summary judgment to the Office for Civil Rights (OCR) on all issues, requiring MD Anderson to pay $4,348,000 in civil money penalties to OCR. From the June 18, 2018 HHS press release (with my bolding):

"OCR investigated MD Anderson following three separate data breach reports in 2012 and 2013 involving the theft of an unencrypted laptop from the residence of an MD Anderson employee and the loss of two unencrypted universal serial bus (USB) thumb drives containing the unencrypted electronic protected health information (ePHI) of over 33,500 individuals. OCR’s investigation found that MD Anderson had written encryption policies going as far back as 2006 and that MD Anderson’s own risk analyses had found that the lack of device-level encryption posed a high risk to the security of ePHI. Despite the encryption policies and high risk findings, MD Anderson did not begin to adopt an enterprise-wide solution to implement encryption of ePHI until 2011 , and even then it failed to encrypt its inventory of electronic devices containing ePHI between March 24, 2011 and January 25, 2013. The ALJ agreed with OCR’s arguments and findings and upheld OCR’s penalties for each day of MD Anderson’s non-compliance with HIPAA and for each record of individuals breached.

"MD Anderson claimed that it was not obligated to encrypt its devices, and asserted that the ePHI at issue was for “research,” and thus was not subject to HIPAA’s nondisclosure requirements. MD Anderson further argued that HIPAA’s penalties were unreasonable. The ALJ rejected each of these arguments and stated that MD Anderson’s “dilatory conduct is shocking given the high risk to its patients resulting from the unauthorized disclosure of ePHI,” a risk that MD Anderson “not only recognized, but that it restated many times.”

Lessons: Follow the guidance of your risk analysis, follow your own policies, and just because the data is for research doesn’t mean you can forget HIPAA.  ONLY information that is collected solely for research is exempt from HIPAA.

See the press release at:  https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/mdanderson/index.html  

HHS Finally Playing Catch-up on HITECH Law Requirements

It’s been more than nine years since the HITECH Act was passed, and HHS is finally dealing with some of the thorniest issues presented by the law.  The HHS regulatory agenda indicates that in November they will propose:

• A new Accounting of Disclosures rule (see story below), 

• A new rule to clarify that healthcare providers are presumed to be acting in the individual's best interests when they share information with an incapacitated patient's family members unless there is evidence that a provider has acted in bad faith, and

• Change the requirement that healthcare providers make a good faith effort to obtain from individuals a written acknowledgment of receipt of the provider's notice of privacy practices.  This one has me concerned, because getting this signed counts as a consent under the TCPA so you can call a patient’s cell phone without breaking the law.  If you skip this, medical offices will need to get written consent to contact the patient instead.  Savings? NONE.

But the biggest issue is with the requirement in HITECH to come up with a way to share penalty amounts collected with the individuals harmed in a breach.  This has more pitfalls and issues than anything HHS has had to come up with in a long time.  The experts have plenty to say about this one.

There is a great summary of all this, with links to the items in the agenda, in an article by Health IT Security, at:  https://healthitsecurity.com/news/ocr-to-share-hipaa-data-breach-settlements-with-victims  

New Accounting of Disclosures Rule to be Proposed, Finally

The Office of Management and Budget’s regulations agenda indicates that the reviled 2011 proposal for a new Accounting of Disclosures rule based on HITECH Act requirements will be withdrawn, and the process will begin anew.  What was proposed in 2011 was preposterous, and the new proposed rule will have sufficient input to develop a rule that focuses on what patients really want to know when they ask for an Accounting.  See the story in GovInfo Security, at https://www.govinfosecurity.com/ocr-plans-do-over-for-accounting-disclosures-proposal-a-11007

New Guidance, Updated FAQs on SAMHSA 42 CFR Part 2

On May 1, 2018, the Substance Abuse and Mental Health Services Administration (SAMHSA) updated its Frequently Asked Questions page about 42 CFR Part 2 with two new fact sheets on how Part 2 applies to disclosures of information for treatment purposes.  The FAQ page is at:  https://www.samhsa.gov/about-us/who-we-are/laws-regulations/confidentiality-regulations-faqs, with links to new fact sheets , Disclosure of Substance Use Disorder Patient Records: Does Part 2 Apply to Me? (https://www.samhsa.gov/sites/default/files/does-part2-apply.pdf) and Disclosure of Substance Use Disorder Patient Records: How Do I Exchange Part 2 Data? (https://www.samhsa.gov/sites/default/files/how-do-i-exchange-part2.pdf)

Head of HHS OCR Says Texting with Patients is OK, but...

But it needs to be the patient’s preference.  In a “Making Policy from the Podium” moment, HHS Office for Civil Rights chief Roger Severino indicated that HHS guidance regarding using plain e-mail with patients would also apply to using plain texting with patients.  (Wouldn’t it be nice to see some real, formal, legal guidance, rather that just comments off the cuff?  Is anybody doing any real work at HHS OCR or is it just that chaos is so prevalent in the Federal government today that nothing of substance ever gets out?  Anyway, don’t get me started…)  

Plain texting is fine with patients if they prefer, but plan texting between professionals is strictly forbidden.  There’s an article in Mike Semel’s Blog posted March 6, 2018 about the Severino’s comments in response to a question at the recent Spring HIMMS conference in Las Vegas.  See:  https://www.emrandhipaa.com/mike/2018/03/06/texting-patients-is-ok-under-hipaa-as-long-as-you/  

Hospital Data Breaches Lead To Thousands of Deaths

On March 27, 2018, Becker’s Hospital Review reported on a Wall Street Journal article on a research presentation showing that hospitals that suffer a data breach can have negative impacts lasting years, due to diverted resources and attention, and slower responses to healthcare situations.  As a result, people die, some 2,100 per year.  These numbers are not huge, but they are significant and preventable.  Breaches => Patient Deaths.  Good Security = Good Patient Care.  See the Becker's article with a link to the WSJ article at:  https://www.beckershospitalreview.com/cybersecurity/study-hospital-data-breaches-tied-to-thousands-of-additional-patient-deaths.html   

TCPA Allows Healthcare Texting If NPP Is Acknowledged

There has long been some uncertainty as to how the Telephone Consumer Protection Act applies to healthcare and cell phones, but a recent ruling (Latner v. Mt. Sinai Health System, Inc., No. 17-99-cv (2d Cir. Jan. 9, 2018)) indicated that if the Notice of Privacy Practices includes mention of such use, and the individual acknowledges that the NPP has been received, that counts as the necessary consent.  So, to comply with TCPA, make sure your NPP includes the necessary statements about contacting the individual, and make sure the individual acknowledges receipt of the NPP.  There’s an informative March 27, 2018 posting on the Journal of AHIMA Blog pages, available at:  http://journal.ahima.org/2018/03/27/can-texting-get-a-healthcare-provider-in-trouble/  

NOTE! This does not address HIPAA Security Rule requirements for security, so you’ll still need your patients to express a preference to receive any plain text messages that may imply a healthcare connection, depending on the message.  The “everyone should get a flu shot” message sent to all recent patients  in the case cited probably would not count as a breach without consent, but an individualized message with personal details could.  Your mileage may vary.

Get Ready for the GDPR — Compliance Required by May 25

The new European Union General Data Protection Regulation goes into effect May 25, 2018, and it requires the protection of the identifiable personal information of any EU subject no matter where that information may be, even in the US.  The GDPR is far from trivial, and could be expected to become the de facto international standard for protection merely because of its widespread applicability.  If you serve any patients or customers who reside in the EU, you need to be aware of this.  

See great overview articles at http://www.bio-itworld.com/2017/10/10/what-the-eu-general-data-protection-regulation-means-for-you.aspx and http://www.healthcareitnews.com/news/europes-gdpr-privacy-law-coming-heres-what-us-health-orgs-need-know and the EU GDPR Web page at https://www.eugdpr.org   

HHS OCR Director Says No More HIPAA Audits To Be Done

Following a presentation at the HIMSS18 conference on March 6, 2018, HHS Office for Civil Rights Director Roger Severino told an Information Security Media Group reporter that while HIPAA enforcement activity would continue unabated, the HIPAA Audit Program will have no further effort other than to report on the results of the prior work and provide best practices guidance based on that analysis.  This is despite a clear requirement in the HITECH Act for HHS to perform periodic audits of covered entities and business associates.  (Law? What law?)  See:  https://www.govinfosecurity.com/no-slowdown-for-hipaa-enforcement-but-audits-ending-a-10701  

Two New Reports Show Massive Insider Threats to PHI

Two news reports of March 2, 2018 show that healthcare security issues are different from other industries, and that insiders pose a huge threat both in accidental and intentional breaches.  Some of the results are astonishing and contrary to what you’d expect.  

A survey by Accenture reported in Becker’s Hospital Review showed that 18% of respondents would sell PHI for as little as $500, and an amazing 24% of respondents said they knew of someone in their organization who had sold access or credentials to an outsider.  See: https://www.beckershospitalreview.com/cybersecurity/1-in-5-health-employees-willing-to-sell-confidential-data-7-survey-insights.html

MedCity News reported that the latest Verizon Protected Health Information Data Breach Report shows how insiders are the biggest threat to the security of PHI, far beyond that for other industries.  Also, larger organizations tend to find problems before the public does better than smaller organizations.  Any surprise?  Remember that the results of the 2012 HIPAA Audits showed that small healthcare providers tend to have security issues, and that apparently hasn’t changed.  See the story at https://medcitynews.com/2018/03/verizon-cybersecurity-report-protected-health-information-breaches-finds-internal-actors-pose-greatest-threat/ and the Verizon report is at http://www.verizon.com/about/news/new-report-puts-healthcare-cybersecurity-back-under-microscope   

$100K Improper Record Disposal by out-of-Business Associate

On February 13, 2018, the HHS Office for Civil Rights announced a resolution agreement for $100,000 with the receiver appointed to liquidate the assets of records management firm Filefax, Inc., of Northbrook, Illinois, for insecure storage and disposal of records.  Filefax advertised that it provided for the storage, maintenance, and delivery of medical records for covered entities and did not escape a penalty even though it shut its doors during the course of OCR’s investigation into alleged HIPAA violations.

It’s so simple — secure storage and disposal of paper records is required, and filing for bankruptcy doesn’t protect an entity that violates the rules.  See the HHS page with links to the press release and the Resolution Agreement and Corrective Action Plan at  https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/Filefax/index.html  

Fresenius gets $3.5 Million Settlement for Lack of Security

On February 1, 2018, the HHS Office for Civil Rights announced a resolution agreement with Fresenius Medical Care North America (FMCNA) for $3.5 million and a corrective action plan to deal with a lack of risk analysis and risk management that led to multiple breaches of PHI.  Although the total number of records breached was for only 521 individuals, the investigation turned up a variety of risk assessment and management problems at a number of sites and organization-wide.  

The clear message is: YOU CAN’T INGORE THE SECURITY RULE ANY MORE.  If you haven’t done the proper risk analysis or haven’t addressed the risks you found (or should have found), you’re looking for trouble.  See the HHS announcement at: https://www.hhs.gov/about/news/2018/02/01/five-breaches-add-millions-settlement-costs-entity-failed-heed-hipaa-s-risk-analysis-and-risk.html  and the Resolution Agreement and Corrective Action Plan at:  https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/FMCNA/index.html   Also worth a look is the article in Fierce Health:  https://www.fiercehealthcare.com/privacy-security/fresenius-medical-care-ocr-3-5m-settlement-hipaa-data-breach-theft  

CMS Says Secure Texting Is OK But Not For Patient Orders

On December 28, 2017, HHS Center for Medicare and Medicaid Services (CMS) issued a memo to its State Survey Agency Directors to clarify that Texting patient information among members of the health care team is permissible if accomplished through a secure platform, but texting of patient orders is prohibited regardless of the platform utilized.  Computerized Provider Order Entry (CPOE) is the preferred method of order entry by a provider.  So, Texting PHI among the team?  Yes, but must be secure.  Texting Patient Orders?  No, which is aligned with Joint Commission rules.  The memorandum is available at:  https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-18-10.pdf  and there are articles on the announcement at:  https://www.fiercehealthcare.com/regulatory/cms-texting-physician-orders-joint-commission-regulations-hipaa-security  and at:  http://www.healthcareitnews.com/news/cms-clarifies-policy-texting-patient-info-across-healthcare-teams  

OCR Finally Announces 21CO $2.3m Settlement 17 Days Later

On December 28, 2017 the HHS Office for Civil Rights finally announced a resolution agreement with 21st Century Oncology (21CO) for HIPAA violations culminating in a breach of 2.2 million records and investigation, resulting in a resolution amount of $2.3 million and a Corrective Action Plan, listed two stories below this one.  The OCR press release is available at https://www.hhs.gov/about/news/2017/12/28/failure-to-protect-the-health-records-of-millions-of-persons-costs-entity-millions-of-dollars.html and the resolution agreement is available at https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/21CO/index.html   

HHS OCR Updates Guidance on Sharing Info in Opioid Incidents

On December 19, 2017 the HHS Office for Civil Rights announced expanded and improved guidance relating to the sharing of information in opioid overdose incidents, including revised guidance, new guidance, and new Frequently Asked Question sets on the topic.  Per former HHS honcho Deven McGraw, this should be required reading for all front line personnel dealing with these emergencies!  See the page with links to the new and updated information at:  https://www.hhs.gov/hipaa/for-professionals/special-topics/mental-health/index.html  

OCR Doesn’t Announce Latest HIPAA Settlement for $2.3m?

On December 11, 2017 the HHS Office for Civil Rights did not announce a filed resolution agreement with 21st Century Oncology (21CO) for HIPAA violations culminating in a breach of 2.2 million records and investigation, resulting in a resolution amount of $2.3 million and a Corrective Action Plan.  But that’s not the worst of it for 21CO — they (now bankrupt, no surprise) face a $26 million penalty for false meaningful use attestations

Here’s an article on it in HealthIT Security:  https://healthitsecurity.com/news/2.3m-ocr-settlement-reached-for-21st-century-oncology-data-breach  And here’s a page with the announcement by the Justice Department about the $26m settlement:  https://www.justice.gov/opa/pr/21st-century-oncology-pay-26-million-settle-false-claims-act-allegations  

Finally, here are a couple of sources for the filed settlement:  https://s3.amazonaws.com/assets.fiercemarkets.net/public/004-Healthcare/external_Q42017/21CO_OCR.pdf  and  https://healthitsecurity.com/images/site/attachments/21-century-ocr-settlement.pdf  

But it is not announced on the HHS OCR page where these are all listed (at https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/index.html), and there have not been the typical e-mail list announcements from them about this.  What gives?  Has all work stopped in Washington?  VERY unusual...

On-site HHS OCR HIPAA Audits for 2017 Cancelled

At the 2017 AHIMA conference in Los Angeles, on October 7, 2017 a representative of the regional office of HHS spoke about the latest from HHS re HIPAA, and although the presentation slides don’t show it, it was announced that the 2016 HIPAA Audit program has concluded, and the on-site audits promised for 2017 will not take place.  Given the tremendous rate of turnover at HHS under the new administration, the paralysis that has hit HHS operations, and the fact that the leaders of the audit program are now gone, I would be surprised to see the program (required by law) to be resuscitated before 2019.

Read The New NISTIR 8192: Enhancing Resilience of the Internet and Communications Ecosystem

On September 19, 2017 the National Institute of Standards and Technology Computer Security Resource Center released NIST Internal Report (NISTIR) 8192, Enhancing Resilience of the Internet and Communications Ecosystem.  This is a surprisingly readable, actionable document that includes specific items to address the needs of a variety of industry stakeholders.

If you are wondering, What in the world am I going to do about all these incredible security threats??? this is a great place to begin.  See the announcement at https://csrc.nist.gov/News/2017/NIST-Releases-NISTIR-8192  and download it at  http://nvlpubs.nist.gov/nistpubs/ir/2017/NIST.IR.8192.pdf 
DO THIS NOW — You will discover things you can do right away, today!

Annual NIST/OCR HIPAA Security Conference Announced

On July 26, 2017, the HHS Office for Civil Rights announced that registration is open for the 10th Annual OCR/NIST conference, Safeguarding Health Information: Building Assurance through HIPAA Security, September 5-6, 2017 at the Hyatt Regency, 400 New Jersey Ave NW, Washington, DC 20001, hosted by OCR and the National Institute for Standards and Technology.

The conference explores the current healthcare cybersecurity landscape and the HIPAA Security Rule. Over two days, presentations will cover a variety of topics including understanding the current cybersecurity threat landscape, managing data breaches, considerations for small provider cybersecurity, managing cybersecurity risk and implementing practical cybersecurity solutions in healthcare environments, updates on OCR's Phase 2 audits and enforcement activities, and more.

Participants can choose to participate in-person or via webcast. All registrants will have access to archived webcast presentations and materials.  Registration ends on 8/29/2017 at 11:59 PM EDT. 

Yes, I am attending again this year, hoping to ask the hard questions of those who should be able to provide answers.

For registration information and additional details, please visit https://www.nist.gov/news-events/events/2017/09/safeguarding-health-information-building-assurance-through-hipaa-security  

HHS OCR Releases “Improved” Wall of Shame for Breaches

On July 25, 2017, the HHS Office for Civil Rights announced an updated HIPAA Breach Reporting Tool (HBRT) featuring improved navigation for both those looking for information on breaches and ease-of-use for organizations reporting incidents.  The tool also helps educate industry on the types of breaches that are occurring, industry-wide or within particular sectors, and how breaches are commonly resolved following investigations launched by OCR. 

New features of the HBRT include:

  • Enhanced functionality that highlights breaches currently under investigation and reported within the last 24 months
  • New archive that includes all older breaches and information about how breaches were resolved
  • Improved navigation to additional breach information
  • Tips for consumers

The HBRT may be found at:  https://ocrportal.hhs.gov/ocr/breach/breach_report.jsf  

For additional information on HIPAA breach notification, visit:  https://www.hhs.gov/hipaa/for-professionals/breach-notification

ONC Releases Report on Issues with Individual Access of PHI

On July 11, 2017, the HHS Office of the National Coordinator for Health IT released a report on patient experiences in the access of medical records, and it’s a pretty sorry looking picture, frankly.  In the examples shown, there is a remarkable lack of understanding of basic HIPAA Access requirements by the involved providers.  The report shows the alarming, life threatening hurdles in the process and offers some ideas what must be done, and NOW.  See the announcement at:  https://www.healthit.gov/buzz-blog/consumer/understanding-patient-experience-improve-patient-access-medical-records/  and the report at:  https://www.healthit.gov/sites/default/files/onc_records-request-research-report_2017-06-01.pdf  

NIST Finalizes Report: Time to Change Password Habits!

On June 22, 2017, NIST released an expected finalized update to Special Publication 800-63-3, Digital Identity Guidelines, published in 4 parts.  The best part of SP 800-63-3 is the password recommendations: see Appendix A to SP 800-63-3 B for the details.

They suggest that periodic password changes are no longer necessary. The report also recommends changes to several other password policies that have become antiquated in the modern computing environment:

  • Allow at least 64 characters in length to support the use of passphrases.
  • Encourage users to make memorized secrets as lengthy as they want, using any characters they like (including spaces), thus aiding memorization.
  • Do not impose other composition rules (e.g. mixtures of different character types) on memorized secrets.

NIST is also recommending checking new passwords against several lists, such as:

  • Context specific words, such as the name of the service, the username, and derivatives thereof.
  • Repetitive or sequential characters (e.g. ‘aaaaaa’, ‘1234abcd’).
  • Passwords obtained from previous breach corpuses.

Link to Special Publication 800-63-3 are provided below, on the CSRC Special Publications page: 
Main document: http://csrc.nist.gov/publications/PubsSPs.html#SP-800-63-3
SP 800-63-3 A: http://csrc.nist.gov/publications/PubsSPs.html#SP-800-63A
SP 800-63-3 B: http://csrc.nist.gov/publications/PubsSPs.html#SP-800-63B
SP 800-63-3 C: http://csrc.nist.gov/publications/PubsSPs.html#SP-800-63C

AHIMA Releases Template for Request for Access of PHI

On July 6, 2017, AHIMA released a model form for Patient Requests for Access to their PHI that meets the requirements of the HHS Office of the National Coordinator for Health IT and Office for Civil Rights.  While the form is hospital-centric in some of the details, it can be the basis for forms used by other providers.  Remember: An access request is NOT the same as a release under Authorization, and you should not use the same forms or processes for both.  This form is very simple, as it should be according to HHS guidance.  See the announcement at  http://www.ahima.org/modelform  and download the form at: https://engage.ahima.org/viewdocument/patient-request-model-form  

ECRI on Protecting Medical Devices from Ransomware Attacks

On May 26, 2017, Healthcare Informatics reported that the ECRI Institute has released a new guidance article, Ransomware Attacks: How to Protect Your Medical Device Systems, with recommendations to help hospitals identify and protect against ransomware attacks.  The report provides recommendations for adapting general cybersecurity principles to the particular requirements of medical device systems, including a list of immediate do's and don'ts for quickly responding to emerging threats.

The Healthcare Informatics article is available at:  https://www.healthcare-informatics.com/news-item/cybersecurity/ecri-institute-publishes-guidance-protecting-medical-devices-ransomware  and the ECRI guidance, published May 18, 2017 is available at:  https://www.ecri.org/components/HDJournal/Pages/Ransomware-Attacks-How-to-Protect-Your-Systems.aspx  

Provider Sends HIV Information to Employer - Oops! = $387K

On May 23, 2017, HHS OCR announced a $387,200 HIPAA settlement for impermissible disclosure of protected health information (PHI) with St. Luke’s-Roosevelt Hospital Center Inc.  In September 2014, OCR received a complaint alleging that a staff member impermissibly disclosed the complainant’s PHI to the complainant’s employer, including sensitive information concerning HIV status, medical care, sexually transmitted diseases, medications, sexual orientation, mental health diagnosis, and physical abuse

The investigation revealed that staff at the Spencer Cox Center impermissibly faxed the patient’s PHI to his employer rather than sending it to the requested personal post office box.  (!!!)  

Additionally, OCR discovered that the Spencer Cox Center was responsible for a related breach of sensitive information that occurred nine months prior to the aforementioned incident but had not addressed the vulnerabilities in their compliance program to prevent impermissible disclosures.  (Yow!)

Look folks, there’s no excuse for this.  Small breaches are easily prevented if everyone DOUBLE-CHECKS what they’re doing before they send information.  And if you have an issue, ADDRESS IT BEFORE IT HAPPENS AGAIN!!  HELLO!  WHERE IS THE COMPLIANCE DEPARTMENT??

See:  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/StLukes/index.html  

NIST Says It’s Time To Change Password Habits in Draft 800-63

New guidelines from NIST expected this summer suggest that periodic password changes are no longer necessary. The report also recommends changes to several other password policies that have become antiquated in the modern computing environment:

  • Allow at least 64 characters in length to support the use of passphrases.
  • Encourage users to make memorized secrets as lengthy as they want, using any characters they like (including spaces), thus aiding memorization.
  • Do not impose other composition rules (e.g. mixtures of different character types) on memorized secrets.

NIST is also recommending checking new passwords against several lists, such as:

  • Context specific words, such as the name of the service, the username, and derivatives thereof.
  • Repetitive or sequential characters (e.g. ‘aaaaaa’, ‘1234abcd’).
  • Passwords obtained from previous breach corpuses.

Draft SP 800-63 is available at, https://pages.nist.gov/800-63-3/, and for the password recommendations, see Appendix A to Draft SP 800-63B at  https://pages.nist.gov/800-63-3/sp800-63b.html#appA  

Also see this article in Quartz Media:  https://qz.com/981941/the-us-standards-office-wants-to-do-away-with-periodic-password-changes/  

Draft NIST Guide on Securing Wireless Infusion Pumps

On May 16, 2017, just in time for the global ransomware attack, NIST announced Draft NIST SP 1800-8, Securing Wireless Infusion Pumps in Healthcare Delivery Organizations, which is now available for public comment.

IF YOU HAVE WIRELESS INFUSION PUMPS, YOU MUST READ AND IMPLEMENT SP-1800-8 or you are playing with fire, and your patient’s lives.

See: http://csrc.nist.gov/publications/PubsDrafts.html#SP-1800-8  for the guide and https://nccoe.nist.gov/news/new-draft-guide-help-healthcare-delivery-organizations-improve-wireless-infusion-pump for the announcement.

Brute Force Attacks on Remote Access Points Under Way

Use RDP for remote access to desktops?  Watch out!  The bad guys are now using brute force attacks to gain entry to networks via open RDP services that use only an ID and password for access.  Time to beef up your Remote Access controls, and require STRONG authentication!  See the article in Healthcare IT News:  http://www.healthcareitnews.com/news/not-remotely-subtle-brute-force-ransomware-attacks-are-rise    

Patient Name in Press Release Headline yields $2.4 million

On May 10, 2017, HHS OCR announced a $2.4 million settlement (and corrective action plan, of course) with Memorial Hermann Health System (MHHS) settle potential HIPAA violations, for issuing a press release about a patient, including details and the patient’s name in the headline, without a HIPAA Authorization, and for not adequately sanctioning the individuals responsible for the violation.

In addition to the $2.4 million settlement, a corrective action plan requires MHHS to update its policies and procedures on safeguarding PHI from impermissible uses and disclosures and to train its workforce members.  The corrective action plan also requires all MHHS facilities to attest to their understanding of permissible uses and disclosures of PHI, including disclosures to the media.  See: http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/MHHS/index.html

Stolen Laptop + No Risk Analysis or Management = $2.5 million

On April 24, 2017, HHS OCR announced a $2.5 million resolution agreement with wireless services provider CardioNet, for not having done the proper risk analysis and risk management, resulting in a stolen laptop and a breach.  The message?  No matter who you are, even if you provide cardiac monitoring services, you need to lock down your portable devices, NOW.  See the press release and agreement at:  https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/cardionet/index.html  

No Business Associate Agreement Leads to $31K settlement

On April 20, 2017, HHS OCR announced a $31,000 resolution agreement with Center for Children’s Digestive Health for not having had a proper HIPAA Business Associate Agreement in place with a business associate, FileFax, Inc., which stored health records for CCDH.  See the Resolution Agreement and Corrective Action Plan at http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/CCDH  

After a break during March, I guess we’re getting back to a two-a-month settlement rate.  Learn your lessons from others’ mistakes!

No Risk Analysis, Breach, Insufficient Risk Mitigation = $400K

On April 12, 2017, HHS OCR announced a $400,000 resolution agreement with Metro Community Provider Network, a FQHC, for not having conducted a HIPAA Security Risk Analysis, suffering a breach, and then following up with insufficient risk analysis and risk mitigation.  I think it’s getting pretty clear that it’s time start a program of regular risk analysis activity that leads to mitigation of the issues discovered.  See the Resolution Agreement and Corrective Action Plan at https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/MCPN.html

OCR’s guidance on the Security Rule may be found at https://www.hhs.gov/hipaa/for-professionals/security/guidance/index.html

Lack of Audit Controls Leads to $5.5 million HIPAA settlement

On February 16, 2017 HHS OCR announced a $5.5 million resolution agreement with Memorial Healthcare Systems of Florida, for not having controlled and monitored access to PHI, leading to a breach of the PHI of 115,143 individuals by an insider.  I’ve been waiting to see an enforcement action based on a lack of auditing, and now it’s here.  This, folks, is the tough nut to crack in HIPAA Security compliance and can no longer be ignored.

The Resolution Agreement and Corrective Action Plan may be found on the OCR website at http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/memorial

OCR offers helpful guidance on the importance of audit controls and audit trails in their January 2017 cyber-newsletter, at https://www.hhs.gov/sites/default/files/january-2017-cyber-newsletter.pdf

See a Security Problem?  Fix it!  If not, $3.2 million PENALTY

On February 1, 2017 HHS OCR announced the imposition of a PENALTY for violations resulting from known security problems that went unaddressed for years at Children’s Medical Center of Dallas.  They had problems with breaches from unencrypted portable devices in 2007 and did not implement the proper encryption until further breaches occurred in 2013.  

Amazingly, Children’s did NOT file for a hearing and passed up an opportunity to negotiate a settlement.  They probably could have had a nice simple corrective action plan and a much lower financial amount but decided to just take the financial penalty.  Or did they just not notice the Notice of Proposed Determination?  Um, OK.  Bizarre.  Either way, I have reservations about their compliance processes.  See the announcement and Notices of Proposed and Final Determination at  https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/childrens  and decide for yourself.

NIST Releases Draft Revision to Intro to Information Security

On January 26, 2017, NIST Released Draft Special Publications (SP) 800-12 Revision 1, Introduction to Information Security, open for public comment submissions through February 22, 2017.  The new draft is available at:  http://csrc.nist.gov/publications/PubsDrafts.html#800-12r1

If you’re looking for a place to start with Information Security, this is a fine one.  If you’re interested in making sure the new revision is a good one, read it and submit your comments.

New Update to the Common Rule for Research Finalized

On January 19, 2017, the revised Federal Policy for Protection of Human Subjects, a.k.k. the Common Rule, was published, relating to the proper protections, including privacy, to be afforded to research subjects.  If you do research involving human subjects, you need to review the changes.  Some privacy concerns have been voiced about the new rule.

What with this new rule, there are many new intersections to be explored between HIPAA, 42 CFR Part 2, and research, not to mention the 21st Century Cures Act!  Those of you who do research with health information relating to substance abuse, for instance, have plenty of homework to do.  You have a little time, until 2018, to implement the new rule.  

See: https://www.federalregister.gov/documents/2017/01/19/2017-01058/federal-policy-for-protection-of-human-subjects 

Poor Implementation of Safeguards Following Breach: $2.2M

On January 18, 2017, HHS OCR announced yet another HIPAA settlement, this time for $2.2 million, for reporting a breach and then not following through on risk mitigation as promised to OCR.  Please, if you have a breach, do what you need to to prevent a repeat (in this case, do your risk analysis and encrypt your portable devices) and satisfy HHS OCR that you actually care about security.  Don’t put it off for years, OK?  See: https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/MAPFRE 

Changes to 42 CFR Part 2 re Substance Abuse Info Finalized

On January 18, 2017, the Substance Abuse and Mental Health Services Administration (SAMHSA) announced the release of the final updates to 42 CFR Part 2 regarding substance abuse treatment information.  The changes, among other things, allow release of information to a qualified researcher, but more importantly, allow a patient to consent to disclosing their information using a general designation (such as “my healthcare providers”), to allow patients to benefit from integrated health care systems.  Patients do not have to agree to such disclosures, but patients who do agree to the general disclosure designation have the option to request a list of entities to whom their information has been disclosed.  

A nice summary is in the press release, available at https://www.samhsa.gov/newsroom/press-announcements/201701131200 and the new rule is at https://www.federalregister.gov/documents/2017/01/18/2017-00719/confidentiality-of-substance-use-disorder-patient-records

Untimely Reporting of Breach Results In $475K Settlement

On January 10, 2017, HHS OCR announced the first HIPAA settlement based on the untimely reporting of a breach of unsecured PHI.  Presence Health has agreed to settle  by paying $475,000 and agreeing to implement a corrective action plan.  With this settlement amount, OCR balanced the need to emphasize the importance of timely breach reporting with the desire not to disincentive breach reporting altogether.  Good idea!

The Press Release, Resolution Agreement, and Corrective Action Plan may be found on the OCR website at http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/presence

Joint Commission Reaffirms Ban on Texting Patient Care Orders

On January 9, 2017, FierceHealthcare.com reported that the Joint Commission, in its December 2016 issue of The Joint Commission Perspectives, had reaffirmed its ban on using texting of any kind for patient care orders, even if secured.  The issues identified in this recent assessment include:

  • Using texts or other messaging apps to order treatments could increase the burden on nurses or other clinical staff who would be responsible for inputting such data into electronic health records
  • Talking in-person allows for easier clarifications if there are questions about an order, and allows for better confirmation of directives
  • If there are any clinical decision support alerts triggered during the EHR process, the clinician inputting the information into the system will have to take time to contact the ordering physician to resolve the issue, potentially causing treatment delays

The article in FierceHealthcare.com is available at:  http://www.fiercehealthcare.com/mobile/joint-commission-text-order-ban-to-stay-place-for-now  and the Joint Commission’s new “Clarification” is available at:  https://www.jointcommission.org/assets/1/6/Clarification_Use_of_Secure_Text_Messaging.pdf  

New FAQs & Guidance from HHS on Disclosures to Loved Ones

OCR has issued a new FAQ clarifying that  the HIPAA Privacy Rule (45 CFR 164.510(b)) permits disclosures to loved ones regardless of whether they are recognized as relatives under applicable law.  In particular, the FAQ makes clear that the potential recipients of information under the relevant permissive disclosure provisions of 45 CFR 164.510(b) are not limited by the sex or gender identity of the person.

In tandem, OCR is updating its existing guidance on several provisions within the HIPAA Privacy Rule that recognize the integral role that a spouse often plays in a patient’s health and health care.  Consistent with the Supreme Court decision in Obergefell v. Hodges, OCR is issuing updated guidance that makes clear that the terms marriage, spouse, and family member include, respectively, all lawful marriages (whether same-sex or opposite-sex), lawfully married spouses and the dependents of all lawful marriages, and clarifies certain rights of individuals under the Privacy Rule. 

See: https://www.hhs.gov/hipaa/for-professionals/special-topics/same-sex-marriage/index.html 

The FAQ is also available at https://www.hhs.gov/hipaa/for-professionals/faq/2086/does-hipaa-privacy-rule-permit-doctor-discuss-patient-s-health-status.html

New NIST Guide for Cybersecurity Event Recovery Released

On December 23, 2016, the National Institute of Standards and Technology (NIST) released a little Christmas gift, a new final Special Publication 800-184 an excellent overall Guide for Cybersecurity Event Recovery that now incorporates incident handling and contingency planning.  The press release (at https://www.nist.gov/news-events/news/2016/12/nist-guide-provides-way-tackle-cybersecurity-incidents-recovery-plan ) provides a good overview, and the Guide is available at:   http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-184.pdf  

From the press release: "The publication supplies tactical and strategic guidance for developing, testing and improving recovery plans, and calls for organizations to create a specific playbook for each possible cybersecurity incident. The guide provides examples of playbooks to handle data breaches and ransomware.”  This approach supports my view that developing and working through drills on various scenarios is one of the best ways to be prepared for a nasty security event.  Bravo!

21st Century Cures Act Includes Health IT and HIPAA Impacts

On December 8, 2016, AHIMA published an informative guide to the Health IT and HIM related sections of the 21st Century Cures Act, now signed by President Obama.  There are numerous sections pertinent to those in HIPAA compliance, and this overview guide from AHIMA is easy to use and understand.  

In fact, many of the things called for relating to HIPAA, such as guidance on sharing information with family, friends, and others involved with an individual’s care, are already in the works at HHS Office for Civil Rights, but the legislation provides a solid foundation for these activities.

This legislation has non-trivial, wide ranging impacts on HIPAA.  See the AHIMA guide at:  http://bok.ahima.org/doc?oid=302012  

NIST Issues Guide to Securing Mac OS X for Security Pros

On December 12, 2016 NIST announced the Release of Special Publication 800-179, Guide to Securing Apple OS X 10.10 Systems for IT Professionals: A NIST Security Configuration Checklist. This Special Publication has been approved as final, and is available at:  http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-179.pdf  

SP 800-179 aims to assist IT professionals in securing Apple OS X 10.10 desktop and laptop systems within various environments providing detailed information about the security features of OS X 10.10 and security configuration guidelines. The publication recommends and explains tested, secure settings with the objective of simplifying the administrative burden of improving the security of OS X 10.10 systems in three types of environments: Standalone, Managed, and Specialized Security-Limited Functionality. 

Additional project resources are at: https://github.com/usnistgov/applesec

Phony OCR E-mails are Phishing Attacks; Avoid hhs-gov.us

On November 28 and 30, HHS Office for Civil Rights announced that a phishing e-mail is being circulated on mock HHS Departmental letterhead.  The e-mail appears to be an official government communication, and targets employees of HIPAA covered entities and their business associates, prompting recipients to click a link regarding possible inclusion in the HIPAA Privacy, Security, and Breach Rules Audit Program.  The link directs individuals to a non-governmental website marketing a firm’s cybersecurity services.

In no way is this firm associated with the U.S. Department of Health and Human Services or the Office for Civil Rights.  The links in the e-mail lead to addresses in the domain “hhs-gov.us” which is not an official HHS domain.  HHS addresses end in “hhs.gov”.  For more information on the HIPAA Audit program and this announcement, see:  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/audit/index.html  

Oh, and By The Way, Business Associate Audits Have Begun

Almost as a footnote in the November 30 announcement above, HHS Office for Ciliv Rights has announced that the first notices for audits have been sent to the Business Associates being targeted for the current round of audits.  If you are a HIPAA Business Associate and any of your customers were selected in the covered entity audits this year, you could be selected for an audit.  Be sure to watch your e-mail and spam filters for the message from HHS!

Where the Network Goes, HIPAA goes; $650K for No Firewall

On November 22, 2016, HHS Office for Civil Rights announced a $650,000 settlement for potential HIPAA violations at UMass Amherst, for not protecting networks with a firewall, leading to a breach of PHI.  In addition, UMass Amherst had not properly designated itself as a Hybrid entity, leaving some HIPAA-covered portions without the appropriate safeguards.  It should be noted that the penalty was lower than might be expected for the violation, because of the net operating loss for the University at the time.  See the press release and agreement at:  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/umass  

NIST Updates Small Business Information Security Guide

On November 14, 2016, The National Institute of Standards and Technology (NIST) released Interagency Report NISTIR 7621 Revision 1, Small Business Information Security: The Fundamentals. NIST developed this interagency report as a reference guideline about cybersecurity for small businesses. This document is intended to present the fundamentals of a small business information security program in non-technical language.  It is a great overview of what goes into an information security program.  See: http://nvlpubs.nist.gov/nistpubs/ir/2016/NIST.IR.7621r1.pdf

Secure That Server Properly On Installation, OR ELSE!

On October 18, 2016, the HHS Office for Civil Rights announced that St. Joseph Health (SJH) has agreed to settle potential violations of the HIPAA Privacy and Security Rules following the report that files containing PHI were publicly accessible through internet search engines from 2011 until 2012.  A default file sharing application had been left open on installation of a server.  Risk Analyses had been performed but were patchwork and incomplete.  SJH will pay a settlement amount of $2,140,500 and adopt a comprehensive corrective action plan.  See the press release and agreement at:  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/sjh  

Yet another reminder that launching a server is like preparing for takeoff — you have to go through a complete checklist, like applicable sections of the CIS Controls for Effective Cyber Defense (https://www.cisecurity.org/critical-controls/), when launching a new server.  And make sure your Risk Analysis is complete!

Surprise! Ready for ACA Section 1557? New FAQs Available

On September 14, 2016, the HHS Office for Civil Rights announced New Section 1557 FAQs on Language Access Requirements and the Top 15 Languages and many providers weren’t even aware of the rule or the October 17, 2016 deadline for compliance.  Beginning on October 17, 2016, covered entities will be required to post Notices of Nondiscrimination and Taglines that alert individuals with limited English proficiency (LEP) to the availability of language assistance services.  Read the FAQs on the Language Access Requirements here:  http://www.hhs.gov/civil-rights/for-individuals/section-1557/1557faqs/top15-languages/index.html

In addition, HHS OCR has made available a table displaying the top 15 languages spoken by individuals with limited English proficiency (LEP) in each State, the District of Columbia, Puerto Rico and each U.S. Territory based on OCR’s research.  View the table of the top 15 languages in each state:  http://www.hhs.gov/sites/default/files/resources-for-covered-entities-top-15-languages-list.pdf  

HHS 2013-2014 Report to Congress on Breach Notification

On August 30, 2016, the Secretary of HHS reported to Congress on the status of the HIPAA Breach Notification program, for the 2013-2014 period, as required under the HITECH Act, section 13402.  The report shows the percentages of breaches by theft and loss are decreasing while unauthorized access and “other” are up, by a number of measures.  

This means the hackers are doing a lot more damage while we still have a significant problem with loose data.  There’s also a good summary of enforcement and audit activity in the 2013-2014 period.  Especially take note of the section on Lessons Learned to see what you can do to avoid breaches, on pages 28-30.  The report is available at:  http://www.hhs.gov/sites/default/files/rtc-breach-20132014.pdf  

HHS Releases Long-Awaited Guidance on Cloud Computing

On October 7, 2016, the US Department of Health and Human Services Office for Civil Rights released guidance on using cloud-based solutions to help HIPAA-regulated CSPs (Cloud Service Providers — hello new acronym!) and their customers in understanding their responsibilities under the HIPAA Rules when they create, receive, maintain, or transmit electronic protected health information.  The guidance includes key questions and answers.  See:  http://www.hhs.gov/hipaa/for-professionals/special-topics/cloud-computing/index.html  Frequently Asked Questions about Business Associates are available at  http://www.hhs.gov/hipaa/for-professionals/faq/business-associates   

This is an area that has been begging for guidance ever since the new rules come out in 2013, as the rules and Preamble did not adequately consider such computing solutions.   Note that the guidance includes several references to the guidance in the story below, on availability of PHI.  With these guidance documents and the guidance on Individual Access of PHI, it is clear that HHS is quite serious about the availability of PHI.

HHS Releases New FAQ on Availability of PHI Maintained by BA

On September 28, 2016, the US Department of Health and Human Services Office for Civil Rights released a new set of Frequently Asked Questions about how Business Associates must maintain availability of PHI.  The FAQs address "whether a business associate of a HIPAA covered entity may block or terminate access by the covered entity to the protected health information maintained by the business associate”.  The short answer is, No.  Data may not be held hostage for non-payment of fees, for instance.  PHI must be returned upon termination of an agreement.  Also, if the covered entity signs an agreement that prevents it from ensuring the availability of its PHI, it is not in compliance.  Check your contracts!  See:  http://www.hhs.gov/hipaa/for-professionals/faq/2074/may-a-business-associate-of-a-hipaa-covered-entity-block-or-terminate-access/index.html

$400K Settlement for Breaches and Not Having BA Agreements

On September 23, 2016, the US Department of Health and Human Services Office for Civil Rights announced a settlement with Care New England Health System (CNE), on behalf of each of the covered entities under its common ownership or control, for the loss of a backup tape with information on 14,000 individuals, without an up-to-date Business Associate Agreement in place for handling the tapes.  Even if you are in the same corporate family, if you have a BA relationship, you need a compliant BAA.  If HHS asks and you don’t have one, you will be in trouble.  Easy as that!  For the press release and settlement agreement, please see:  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/wih  

NIST Releases SP 800-177 on Trustworthy E-mail

On September 16, 2016, NIST released Special Publication 800-177, Trustworthy Email, which overs and gives recommendations for state of the art email security technologies to detect and prevent phishing and other malicious email messages. Most of these new technologies rely on publishing email infrastructure-related information in DNSSEC, a secure version of the established Domain Name System (DNS). The guide was written for email administrators and for those developing security policies for enterprise’s email infrastructure.  See:  http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-177.pdf  

FTC Advises: Watch that Rental Car USB Port!

The Federal Trade Commission has advised people to be wary of using their smart phones with the USB ports in rental cars.  Cars can pull information out of your phone without your knowing it and can retain your contacts, etc. for the next renter.  Be sure to clear out your rental car’s memory when you turn it in!  See:  https://www.consumer.ftc.gov/blog/what-your-phone-telling-your-rental-car  and  https://fcw.com/articles/2016/08/31/ftc-cert-rockwell.aspx  Always be careful using any USB ports you don’t control, in cars or at airports!

HHS Releases Updated HIPAA Security Risk Assessment Tool

In early September 2016, HHS Office of the National Coordinator for Health IT released an updated version of the HIPAA Security Risk Assessment Tool for Windows and iPad with new compatibility with Windows 10, and additional functionality for the iPad version.  For more information, see:  https://www.healthit.gov/providers-professionals/security-risk-assessment-tool  

HIMSS Releases 2016 Cybersecurity Survey Report

HIMSS has released its report on its 2016 Cybersecurity Survey which gathers information from a number of entities to develop a picture of the issues facing healthcare entities regarding cybersecurity, and some of the measures entities take to deal with the issues.  Available at: http://www.himss.org/hitsecurity

HHS OCR Will Make More Investigations into Small Breaches

On August 18, 2016, the US Department of Health and Human Services Office for Civil Rights announced an “Initiative to More Widely Investigate Breaches Affecting Fewer than 500 Individuals”.  HHS regional offices will take on the load, and look into factors such as: 
• The size of the breach
• Theft of or improper disposal of unencrypted PHI
• Breaches that involve unwanted intrusions to IT systems (for example, by hacking)
• The amount, nature and sensitivity of the PHI involved
• Instances where numerous breach reports from a particular covered entity or business associate raise similar issues.  

OCR noted that regions may also consider the lack of breach reports affecting fewer than 500 individuals when comparing a specific covered entity or business associate to like-situated covered entities and business associates.  In other words, if everyone else like you reports breaches and you don’t, why not?

The press release will be available at:  http://www.hhs.gov/ocr/newsroom/index.html#  

Advocate Health Care Ignores Security Rule = $5.5 million

The flood of HIPAA settlements continues.  On August 4, 2016, the US Department of Health and Human Services Office for Civil Rights announced a $2.75 million resolution agreement with Advocate Health Care for potential violations of the HIPAA Security Rule leading in some cases leading to breaches, affecting four million people.  No complete RA, no physical controls at a data center, no BAA with a vendor holding PHI, and an unencrypted laptop stolen from an unlocked car overnight.  Let us count the violations!  Yes, it is a record settlement amount.  See:  http://www.hhs.gov/about/news/2016/08/04/advocate-health-care-settles-potential-hipaa-penalties-555-million.html  

Annual NIST/OCR HIPAA Security Conference Announced

The NIST Information Technology Laboratory announced the next NIST/OCR HIPAA Security conference — Safeguarding Health Information: Building Assurance through HIPAA Security - 2016 — in Washington, DC, set for Wednesday and Thursday, October 19-20, 2016, at the Capital Hilton, and available by Webcast as well.  This is the ONLY conference that I ALWAYS attend every year — you get access to the best experts in a non-commercial setting, and insights you can gain nowhere else.  If you can, go, or at least attend the Webcast.  See:  http://www.nist.gov/itl/csd/safeguarding-health-information-hipaa-security-2016.cfm  

DHS Releases Cyber Incident Reporting Guide

On July 28, 2016, the US Department of Homeland Security released Cyber Incident Reporting:  A Unified Message for Reporting to the Federal Government, providing guidance on to which Federal agencies and departments certain Cyber Incidents should be reported.  Best to pay attention to this, if you suffer some kind of Cyber Incident!  The DHS page hosting the guidance is at:  https://www.dhs.gov/publication/cyber-incident-reporting-unified-message-reporting-federal-government  and the guidance document is available at:  https://www.dhs.gov/sites/default/files/publications/Cyber%20Incident%20Reporting%20United%20Message.pdf  

HHS Issues New Guidance on HIPAA Audits and on Device IDs

On July 27, 2016, the HHS Office for Civil Rights provided new HIPAA Audit Guidance & FAQ on HIPAA and Unique Device Identifiers.

1) Guidance for 2016 HIPAA Desk Audits 

Covered entities received notification of their selection as the subjects of an Office for Civil Rights (OCR) desk audit of compliance with the HIPAA Security, Privacy and Breach Notification Rules on July 11, and were invited to participate in a webinar held on Wednesday, July 13, where OCR staff walked through the processes for the audit and expectations for their participation.  

To respond to questions, OCR developed three targeted guidance documents, available at http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/audit/index.html.  

 — One is a comprehensive question and answer listing.  

 — The second puts the specific audit document submission requests in context with the rule requirements and associated protocol audit inquiries, as well as the related questions asked by selected entities.  The entire protocols are available on the OCR website; for this guidance we extracted from those protocols the specific desk audit provisions, and added the audit inquiries and Q&A.  

 — Finally, OCR has posted the slides used in the webinar.  The guidance should be helpful to audited entities as well as other covered entities and business associates seeking assistance with improving their compliance with these important requirements of the HIPAA Rules.  

2) New FAQ: HIPAA and Unique Device Identifiers (Note: "Device Identifiers" is NOT a unique identifier — which one are you taking about?  Are you lost yet?  No?  Read on...)

OCR has posted a new FAQ on HIPAA and Unique Device Identifiers (UDI), which clarifies that the device identifier (DI) portion of a UDI can be part of a limited or de-identified data set as defined under HIPAA.  While the HIPAA Privacy Rule prohibits the inclusion of “device identifiers and serial numbers” in both limited data sets and data sets that are de-identified in accordance with the “de-identification safe harbor” provisions, the guidance explains that the DI portion of the UDI is not the type of “device identifier” to which these HIPAA Privacy Rule provisions refer.  (Oh Boy!  “Device Identifiers” that aren’t “Device Identifiers”!  Aren’t the regulations simple and unambiguous?  No, you say?)

You may find the new FAQ on OCR’s website at:  http://www.hhs.gov/hipaa/for-professionals/faq/2071/can-device-identifier-di-portion-unique-device-identifier-udi-be-part-limited-or-de-identified

Ignoring Security Costs U Miss Med Center $2.75 million

On July 25, 2016, the US Department of Health and Human Services Office for Civil Rights announced a $2.75 million resolution agreement with University of Mississippi Medical Center for lack of attention to security, even after vulnerabilities and risks were noted.  The agreement announcement, available at:  http://www.hhs.gov/about/news/2016/07/21/ocr-announces-275-million-settlement-multiple-alleged-hipaa-violations.html  cited a number of issues resulting in breaches and exposure of patient information.  Compliance would have been WAY cheaper than the agreement, shall we say. 

Joint Commission Says “Whoa!” to Removal of Texting Ban

On July 18, 2016, Health IT Security reported that the Joint Commission on Accreditation of Healthcare (JCAHO) has decided to delay the removal of a ban on the use of texting (even secure texting) for physician ordering that had been previously announced.  Instead, they will wait for guidance to be developed by JCAHO and CMS to ensure texting is done correctly and aligns with the Medicare Conditions of Participation.  

The ban had been put in place because “texting applications were unable to verify the identity of the person sending the text or to retain the original message as validation of the information entered into the medical record,” the Commission stated. - See more at: http://healthitsecurity.com/news/secure-texting-ban-reinstated-commission-calls-for-guidance

Insufficient Risk Analysis and Risk Management Cost $2.7m

On July 18, 2016, (cue Sonny and Cher music, The Beat Goes On) the US Department of Health and Human Services Office for Civil Rights announced a $2.7 million resolution agreement with Oregon Health and Science University for a variety of issues, including insufficient risk analysis and risk management, lack of encryption, lack of a Business Associate Agreement with a cloud vendor hosting PHI, and breaches causing harm to individuals.  

I’ve always maintained that academic medical centers are the most difficult institutions to being into HIPAA compliance, and this is a perfect illustration.  

• The press release is available at:  http://www.hhs.gov/about/news/2016/07/18/widespread-hipaa-vulnerabilities-result-in-settlement-with-oregon-health-science-university.html   
• The resolution agreement and corrective action plan are available at:  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/ohsu/index.html  

FBI Issues Security Guidance for Healthcare Information

On July 13, 2016, Health Data Management reported that the FBI has issued guidance on best practices for protecting healthcare data, re-emphasizing some well-known precautions, but also including others that may not be widely used.  It is an excellent list to start with for your security improvement program that is essential today.  See: http://www.healthdatamanagement.com/news/fbi-sees-rising-cyber-threats-to-healthcare-organizations

HIPAA Audits for 167 Covered Entities Now Under Way

On July 11, 2016, the US Department of Health and Human Services Office for Civil Rights issued notices to the 167 HIPAA Covered Entities being audited in the round of 2016 desk audits.  If you are a CE and you have NOT been notified, you are not likely to be notified for a desk audit.  Some entities received a request for information on Privacy (in the areas of Notice of Privacy Practices and Access of PHI), and some received a request for information related to Risk Analysis and Risk Management under the Security Rule.  All received a request for a list of Business Associates and contact information.  

Information must be provided by July 22, 2016, and the process is expected to take roughly 90 days to complete for each entity (including time to respond to initial findings), with the program expected to completed by the end of December, 2016.

A selection of Business Associates will receive a desk audit in the fall, and there will still be some on-site audits for some Covered Entities yet to go.  Information on the HIPAA Audit Program is available at:  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/audit/index.html  

HHS OCR Issues Fact Sheet on Dealing with Ransomware

On July 11, 2016, the HHS Office for Civil Rights released Fact Sheet: Ransomware and HIPAA, providing guidance to health care entities about what ransomware is and how good HIPAA compliance helps you deal with it, and indicates that a ransomware attack should be considered a breach, because control of the PHI has been compromised.  The fact sheet is available at:  http://www.hhs.gov/sites/default/files/RansomwareFactSheet.pdf  

HIPAA Business Associate Gets $650K Settlement for Breach

On June 30, 2016, the US Department of Health and Human Services announced a $650,000 settlement agreement with Catholic Health Care Services of the Archdiocese of Philadelphia (CHCS) for potential violations of the HIPAA Security Rule after the theft of an unprotected CHCS iPhone compromised the PHI of hundreds of nursing home residents.  

The iPhone was unencrypted and was not password protected.  The information on the iPhone was extensive, and included social security numbers, information regarding diagnosis and treatment, medical procedures, names of family members and legal guardians, and medication information.  At the time of the incident, CHCS had no policies addressing the removal of mobile devices containing PHI from its facility or what to do in the event of a security incident; OCR also determined that CHCS had no risk analysis or risk management plan.  In determining the resolution amount, OCR considered that CHCS provides unique and much-needed services in the Philadelphia region. 

Information on the settlement agreement is available at  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/catholic-health-care-services/index.html  

HHS Issues Ransomware Guidance for Healthcare Entities

In June, 2016, HHS issued new guidance on the protection of healthcare organizations from Ransomware attacks.  The guidance explains what Ransomware is, how to protect your networks from it, and how to respond to it.

An article on the guidance is available in Becker’s Hospital Review, at  http://www.beckershospitalreview.com/healthcare-information-technology/hhs-issues-ransomware-guidance-to-healthcare-organizations.html  and the guidance is available at  http://www.aha.org/content/16/160620cybersecransomware.pdf  

Illinois Adds Health Information to Data Breach Notification

In May 2016, Illinois enacted a law expanding the Illinois Data Breach Notification law to include health insurance and medical information, beginning in 2017.  Note that the law is not limited to HIPAA-covered information; it also includes apps and Web sites that may be outside of HIPAA control.  Flexible notification is also included in the new law, providing more options in notification.

Perhaps most significantly, the law also includes requirements to “implement and maintain reasonable security measures,” including the addition of data security provisions to contracts that disclose personal information to another entity.  It’s time to review the SANS Top 20 Critical Security Controls, as that is becoming the accepted baseline for information security.

The news story in Health IT Security is available at:  http://healthitsecurity.com/news/il-data-breach-notification-law-to-include-healthcare-data  and the Top 20 Critical Security Controls are available at:  https://www.sans.org/critical-security-controls  

Watch That Public USB Outlet!  It could attack your device

In an article published June 1, 2016, the Sydney (Australia) Morning Herald reported that Kaspersky Lab warns that public USB outlets could transmit malicious code and be used for nefarious purposes.  After all, come to think of it, you wouldn’t let someone plug in their USB device to your network because of the risks; why would it be any safer to use a public USB charger?

See the article at:  http://www.smh.com.au/technology/consumer-security/public-usbs-are-not-power-points-kaspersky-warns-of-phone-hacking-danger-20160531-gp8myy.html  

One solution: Using a cable or adapter that blocks data transfer and ONLY can be used for charging.  Much lighter and more portable than a power cube!  See:  http://www.portablepowersupplies.co.uk/portapow-data-block-charge-usb-c-cable/  

HHS OCR Adds Guidance re Fees for Electronic Records Access

On May 24, 2016, the US Department of Health and Human Services Office for Civil Rights issued an update to their guidance on Access of PHI by Individuals, further explaining the use of a $6.50 flat fee for electronic copies of records, and when that fee may or may not be appropriate.  The update is integrated into the Q&A section of the guidance, and is available within the guidance directly at:  http://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html#maximumflatfee  while the guidance remains available at http://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html  

Steps for Prevention of Ransomware Attacks — Do these now!

On May 16, 2016, Health Data Management magazine’s Web site published a very useful, practical guide to preventing ransomware attacks by such means as:
  • Developing a plan for an end-user awareness program and implementing it across the hospital
  • Reviewing the server backup processes and evaluating users' network drive permissions
  • Auditing user privilege roles
  • Disabling macro scripts from MS Office files
  • Reviewing monthly patch management processes and inbound spam and malware protection
  • Installing a next-generation firewall and advanced endpoint protection

Go to the site, copy the entire list, and get to work, right now.  See:  http://www.healthdatamanagement.com/opinion/how-healthcare-providers-can-prevent-ransomware-attacks  

OCR Issues Cyber-Awareness Update on Business Associates

On May 3, 2016, the US Department of Health and Human Services Office for Civil Rights issued a Cyber-Awareness Monthly Update regarding the topic, Is Your Business Associate Prepared for a Security Incident?  The guidance indicates that entities should consider:
• Ensuring that agreements define appropriate uses and disclosures and include requirements to report any other use or disclosure including breaches
• Including in agreements the timeframe for reporting any incidents
• Identifying what must be included in any breach or incident reports
• Ensuring all workforce members are trained and Business Associate privacy and security practices are adequate

Additional details are provided.  The update is available via subscription from HHS OCR (see https://list.nih.gov/cgi-bin/wa.exe?SUBED1=OCR-SECURITY-LIST&a=1) and the current update is available at a number of locations, including:  http://www.inspn.org/wp-content/uploads/2016/05/OCR-CyberAwareness-Monthly-Update.pdf  

Joint Commission Says Secure Texting OK for Orders, but…

On April 29, 2016, the Joint Commission released an update on its position on the use of texting for orders, in its May 2016 issue of Joint Commission Perspectives.  The update indicates the use of secure texting services for management of orders is acceptable practice, with some caveats.  The required components of an order must be included, and the messaging platform should include
• a secure sign-on process,
• encrypted messaging,
• delivery and read receipts,
• date and time stamp,
• customized message retention time frames, and
• a specified contact list for individuals authorized to receive and record orders

Communications must be documented, and organizations should:
• Develop an attestation documenting the capabilities of their secure text messaging platform
• Define when text orders are or are not appropriate
• Monitor how frequently texting is used for orders
• Assess compliance with texting policies and procedures
• Develop a risk management strategy and perform a risk assessment
• Conduct training for staff, licensed independent practitioners, and other practitioners on applicable policies and procedures

The update is available from the Joint Commission at:  http://www.jointcommission.org/assets/1/6/Update_Texting_Orders.pdf  and an article on the topic in mhealthintelligence.com is available at:  http://mhealthintelligence.com/news/joint-commission-ends-text-messaging-ban-for-clinicians#.VyomPGWRgfA.gmail  

Verizon 2016 Data Breach Investigations Report Released

Verizon Enterprise Solutions has released to insiders the ninth Data Breach Investigations Report, pulling together incident data from around the world to reveal insights based on over 100,000 incidents from 82 countries, including analysis of 2,260 confirmed data breaches.  Highlights include:
• 89% of breaches had a financial or espionage motive.
• Over 85% of all of security incidents fit into just nine categories.
• The biggest risks you face and what attacks look like.
• Practical steps you can take today to better protect your data.

Healthcare was listed as a top industry for issues in the categories of Insider and Privilege Misuse, Miscellaneous Errors, Physical Theft and Loss, and Everything Else.  As to the issue of Physical Theft and Loss, they offer the following haiku:

Employees lose things
Bad guys also steal your stuff
Full disk encryption

This is one of the most useful, practical, readable guides to dealing with current security and data breach issues and should be required reading in every IT department.  See:  http://www.verizonenterprise.com/verizon-insights-lab/dbir/2016/insiders/  

NY Presbyterian Gets $2.2 million Settlement for Allowing TV Crews to Film in the ED

The beat goes on!  On April 21, 2016, the US Department of Health and Human Services Office for Civil Rights announced that reached a $2.2 million settlement with New York Presbyterian Hospital (NYP) for the egregious disclosure of two patients’ PHI to film crews and staff during the filming of “NY Med,” an ABC television series, without first obtaining authorization from the patients. In particular, OCR found that NYP allowed the ABC crew to film someone who was dying and another person in significant distress, even after a medical professional urged the crew to stop

OCR also found that NYP failed to safeguard protected health information and allowed ABC film crews virtually unfettered access to its health care facility, effectively creating an environment where PHI could not be protected from impermissible disclosure to the ABC film crew and staff.

What were they thinking? How could this possibly be seen as OK?  Does anyone work in Compliance?  Academic medical centers tend to be out of control because of their complexity in responsibility and governance but this takes the cake. 

The announcement and agreement, and a link to a FAQ page on Media Access to PHI are available at  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/new-york-presbyterian-hospital/index.html  

FTC/OCR/ONC/FDA Release Developer Tool for Apps and Regs

On April 15, 2016, The Federal Trade Commission (FTC) announced a new web-based tool to help developers of health-related mobile apps understand what federal laws and regulations might apply to them, developed the tool in conjunction with OCR, the HHS Office of National Coordinator for Health Information Technology (ONC), and the Food and Drug Administration (FDA).

Based on the developer’s answers to a series of questions about the app, the guidance tool will point the developer toward information about federal laws that might apply, including the FTC Act, the FTC’s Health Breach Notification Rule, HIPAA, and the Federal Food, Drug and Cosmetics Act (FD&C Act).

Developers seeking more information about how the HIPAA Rules might apply to their apps should visit OCR’s health app developer portal.  One new resource on the portal is Health App Use Scenarios and HIPAA, which analyzes whether HIPAA applies to a range of example health app scenarios and offers questions to consider in determining when HIPAA’s regulations cover a particular health app. 

See: http://www.hhs.gov/hipaa/for-professionals/special-topics/developer-portal/index.html

$750K Settlement for Lack of a Business Associate Agreement

On April 20, 2016, the US Department of Health and Human Services Office for Civil Rights announced that Raleigh Orthopaedic Clinic, P.A. of North Carolina (Raleigh Orthopaedic) has agreed to pay $750,000 for potential Privacy Rule violations by handing over protected health information (PHI) for approximately 17,300 patients to a potential business partner without first executing a business associate agreement, leaving this sensitive health information without safeguards and vulnerable to misuse or improper disclosure.  OCR initiated its investigation of Raleigh Orthopaedic following receipt of a breach report on April 30, 2013.  

In addition to the $750,000 payment, Raleigh Orthopaedic is required to revise its policies and procedures for managing business associate relationships, in an extensive Corrective Action Plan.

See the Bulletin and Resolution Agreement at  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/raleigh-orthopaedic-clinic/index.html  

HHS Releases New HIPAA Audit Protocol, Virtually Unusable!

On April 1, 2016, and I hope it wasn’t an April Fool’s joke, the US Department of Health and Human Services Office for Civil Rights updated their HIPAA Audit Protocol for the new HIPAA Audit Program, much to my, and others’ no doubt, frustration.  The old format allowed you to easily copy and paste the protocol into a spreadsheet so you could actually USE it, but no such luck with the new one, because the formatting on the Web site makes it virtually unusable, and impossible to easily paste into Excel in a usable way.  

THANKS HHS!  What a miserable job.  What an embarrassment.  They didn’t even announce the new page, and, by the way guys, if it’s not ready, DON’T POST IT.  You can’t even download an Excel copy.  If you look at the site and try to use it, you’ll see what I mean.  It looks like it might be a great tool for preparing for audits but NOT IN ITS CURRENT UNUSABLE FORMAT.  If you’d like to be as frustrated as I am about this, see http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/audit/protocol-current/index.html  If you’d like to submit comments (and you can imagine the one I submitted) send an e-mail to OSOCRAudit@hhs.gov .  PLEASE FIX THIS, HHS!  No joke!  (Yes, Jim, but what do you REALLY think?)

NIST Releases 2nd Draft of SP 800-177, on Trustworthy Email

On March 30, 2016, the National Institute of Standards and Technology released the second draft of the new Special Publication 800-177, focusing on how plain old insecure e-mail can be remade into Trustworthy E-mail.  This is an incredibly useful document for anyone slightly technically oriented, as it does cover a lot of technical topics but is very approachable, with several very real, very actionable security recommendations.  In this day and age, we ALL need to understand how encrypted email can work, and this SP does a great job of explaining the various protocols and processes behind bringing e-mail into the 21st century.

This is HIGHLY RECOMMENDED READING for anyone wrestling with securing e-mail.  Available at: http://csrc.nist.gov/publications/PubsDrafts.html#800-177  Comments on the new draft may be submitted until April 29, 2016 via e-mail to SP800-177@nist.gov .

2016 HIPAA Audit Program Announced, Saying Not Much New

On March 21, 2016, The US Department of Health and Human Services Office for Civil Rights announced the launch of its 2016 HIPAA Audit Program, providing almost no information that was not already widely believed to be the case.  It hasn’t yet begun, the HIPAA Audit Protocol is not yet updated, and the start of any audits is still a “few months” away.  Yes, Business Associates will be targeted as well as Covered Entities, in “round two,” following the audits of Covered Entities.  Yes, the audits will be, for the most part, desk audits limited to selected areas of the rules, completed within 30 days, but there may be field audits as well.

Perhaps the most useful information is that contact will be made via e-mail from HHS OCR, so make sure your spam filter doesn’t toss them!  If you don’t reply to the e-mail, you may still be selected anyway.  And, the entire process will be completed by December 31, 2016.

The non-announcement is available at  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/audit/phase2announcement/index.html  and the HHS OCR page on the topic (with lots of actually useful Q&A) is available at:  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/audit/index.html  

Two More Laptop-Related Settlements, re a BA, and Research

On March 16 and 17, 2016, The US Department of Health and Human Services Office for Civil Rights announced new resolution agreements related to the loss or theft of laptop computers, one in the hands of a HIPAA Business Associate and one managed by a research organization.  

North Memorial Health Care of Minnesota did not have an appropriate Business Associate agreement with a major contractor, and had not adequately performed a risk analysis prior to the BA's loss of a laptop full of patient information — $1.55 million settlement and corrective action plan.  See:  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/north-memorial-health-care/index.html  

Feinstein Institute for Medical Research did not implement appropriate security precautions or perform a complete risk analysis for HIPAA compliance and lost a laptop via theft from an employee — $3.9 million settlement and a corrective action plan.  See:  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/Feinstein/index.html  

In case you missed the memo, it’s a really good idea to encrypt all portable devices containing any PHI!

CIRCL Releases Guidance on Ransomware Defense & Response

On February 23, 2016 the Computer Incident Response Center Luxembourg (CIRCL) released TR-41 Crypto Ransomware - Proactive defenses and incident response, a guide to defending and recovering from Crypto Ransomware attacks.  The guidance provides actionable measures to prevent and repel ransomware incidents.  Highly recommended reading for all!  See:  https://www.circl.lu/pub/tr-41/  

HHS OCR Updates Access Guidance with New Q&As regarding Fees for Providing Copies of PHI

On February 25, 2016, The US Department of Health and Human Services Office for Civil Rights updated its guidance on rights of individuals to access their PHI with an additional set of questions and answers, dealing with fees charged for providing access.  The announcement is available at: http://www.hhs.gov/blog/2016/02/25/new-hipaa-guidance-accessing-health-information-fees-copies.html  and the guidance is available at  http://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html#newlyreleasedfaqs

HHS OCR Releases Crosswalk for HIPAA Security vs. NIST Cybersecurity Framework

On February 24, 2016, The US Department of Health and Human Services Office for Civil Rights released a crosswalk between the HIPAA Security Rule and the NIST Cybersecurity Framework to show how the HIPAA Security Rule compares with the NIST Cybersecurity Framework and other security regulations.  For organizations needing to meet multiple security requirements, the crosswalk simplifies compliance by showing where there are overlaps in requirements.  See the announcement, with a link to the crosswalk at:  http://www.hhs.gov/hipaa/for-professionals/security/nist-security-hipaa-crosswalk/index.html  

$25K Settlement for Posting Pictures Without Authorizations

On February 16, 2016, The US Department of Health and Human Services Office for Civil Rights announced a resolution agreement for $25,000 with Complete P.T., Pool & Land Physical Therapy, Inc., operating in the Los Angeles area, for posting patient photographs and testimonials without obtaining a valid HIPAA Authorization on its website, and for not having appropriate policies and procedures for handling the authorization process.  See the announcement and resolution agreement at:  http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/complete-pt/index.html  

HHS OCR Announces Guidance for Health App Developers

In February, 2016, the US Department of Health and Human Services Office for Civil Rights announced new guidance on the application of HIPAA rules to App Developers, and describes the typical circumstances when one may or may not be considered a HIPAA Business Associate.  The guidance is available at:  http://hipaaqsportal.hhs.gov/community-library/accounts/92/925889/OCR-health-app-developer-scenarios-2-2016.pdf  

HHS Announces Proposed Rules to Modify 42 CFR Part 2 Restrictions

On February 5, 2016, the US Department of Health and Human Services announced new proposed regulations for Confidentiality of Alcohol and Drug Abuse Patient Records, 42 CFR Part 2. The goal of the proposed changes is to facilitate information exchange within new health care models while addressing the legitimate privacy concerns of patients seeking treatment for a substance use disorder.  The press release is available at:  http://www.hhs.gov/about/news/2016/02/05/hhs-proposes-changes-to-rules-governing-confidentiality-substance-use-disorder-records.html  
The Proposed rules published in the Federal Register February 9, 2016 are at:  https://www.federalregister.gov/articles/2016/02/09/2016-01841/confidentiality-of-substance-use-disorder-patient-records  
The comment period is open until April 11, 2016.

New HHS Fact Sheets on Exchange of PHI for Treatment and Operations

On February 4, 2016, the US Department of Health and Human Services announced, via its blog, that it had released two fact sheets concerning Permitted Uses and Disclosures for the Exchange of Protected Health Information for purposes of Treatment and for purposes of Health Care Operations, in order to clarify HIPAA regulations and help enable permissible uses and disclosures under the rules.  
• The blog entry is at  https://www.healthit.gov/buzz-blog/electronic-health-and-medical-records/interoperability-electronic-health-and-medical-records/the-real-hipaa-supports-interoperability/ 
• The fact sheet on Exchange for Treatment is at  https://www.healthit.gov/sites/default/files/exchange_treatment.pdf 
• The fact sheet on Exchange for Health Care Operations is at  https://www.healthit.gov/sites/default/files/exchange_health_care_ops.pdf  

According to the blog post, this is the first in a series of postings of new guidance meant to clear confusion about HIPAA and promote proper compliance.  "Blog #2 will be background on HIPAA’s Permitted Uses and Disclosures: what they are, and how they advance the national goal of interoperability. Blog #3 will give examples of exchange of health information for Care Coordination, Care Planning, and Case Management, both between providers, and between provider and payers. Finally, Blog #4 will give examples of interoperable, permissible exchange of PHI for Quality Assurance and Population-Based Activities, including via a health information exchange.” 

HHS OCR Announces Fine for Insecure Handling of Paper PHI

On February 3, 2016, The US Department of Health and Human Services Office for Civil Rights announced that an HHS Administrative Law Judge (ALJ) has ruled that Lincare, Inc. (Lincare) violated the HIPAA Privacy Rule and granted summary judgment to OCR on all issues, requiring Lincare to pay $239,800 in civil money penalties.  This is only the second time in its history that OCR has sought CMPs for HIPAA violations, and each time the CMPs have been upheld by the ALJ. 

From the press release: "OCR’s investigation of Lincare began after an individual complained that a Lincare employee left behind documents containing the protected health information (PHI) of 278 patients after moving residences.  Evidence established that this employee removed patients’ information from the company’s office, left the information exposed in places where an unauthorized person had access, and then abandoned the information altogether.  Over the course of the investigation, OCR found that Lincare had inadequate policies and procedures in place to safeguard patient information that was taken offsite, although employees, who provide health care services in patients’ homes, regularly removed material from the business premises. Further evidence indicated that the organization had an unwritten policy requiring certain employees to store protected health information in their own vehicles for extended periods of time.  Although aware of the complaint and OCR’s investigation, Lincare subsequently took only minimal action to correct its policies and strengthen safeguards to ensure compliance with the HIPAA Rules.” 

The two messages here: Take proper care of paper records, and don’t ignore HHS Office for Civil Rights.

The Notice of Proposed Determination and the ALJ’s opinion may be found on the OCR website at http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/lincare/index.html

HHS OIG Report Says Utah Medicaid Systems Had Weaknesses

On February 2, 2016 FierceHealthIT reported that the HHS Office of Inspector General had completed a report in January entitled: INADEQUATE SECURITY MANAGEMENT PRACTICES LEFT UTAH DEPARTMENT OF HEALTH SENSITIVE MEDICAID DATA AT RISK OF UNAUTHORIZED DISCLOSURE.  Once again, the OIG pretty much says it all right there in the title.  This is a study of what happened when a contractor for Utah IT put up a server insecurely and 780,000 people in Utah had their PHI hacked.  The population of Utah is only 2.9 million, so that’s 29% of the state affected.  The news report is at  http://www.fiercehealthit.com/story/oig-weaknesses-utah-department-healths-medicaid-it-systems-high-impact/2016-02-02  

The OIG Report is at: http://oig.hhs.gov/oas/reports/region7/71500455.pdf  

A report on the Utah Breaches is available at: http://www.fiercehealthit.com/story/health-department-breach-impacts-24k-medicaid-patients/2012-04-05   

FDA Provides Cybersecurity Recommendations for Medical Devices

On January 15, 2016 the US Food and Drug Administration (FDA) announced draft guidance on important steps medical device manufacturers should take to continually address cybersecurity risks to keep patients safe and better protect the public health. The draft guidance details the agency’s recommendations for monitoring, identifying and addressing cybersecurity vulnerabilities in medical devices once they have entered the market.  The announcement is available at:  http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm481968.htm  and the guidance, posted January 22, 2016, is available at:  http://www.fda.gov/downloads/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/UCM482022.pdf  

In October 2014, the FDA issued guidance for medical device manufacturers regarding building cybersecurity into their product from the beginning of the development process, available at:  http://www.fda.gov/downloads/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/UCM356190.pdf  

HIMSS Announces its Healthcare Cybersecurity Community

On January 19, 2016, HIMSS launched its Healthcare Cybersecurity Community for its members, which will provide a forum where healthcare constituents can discuss and learn about advancing the state of cybersecurity in the healthcare industry.

Participation in the community will include monthly discussions via WebEx with healthcare cybersecurity thought-leaders and discussion with peers in the healthcare sector.  In addition, members of the Healthcare Cybersecurity Community can engage and dialogue with each other through a dedicated ListServ.

January Webinar Information: The first Healthcare Cybersecurity Community webinar will occur on January 28, 2016 from 2-3PM ET.  The speaker will be Kevin A. McDonald, BSN, MEPD, GCIS, CISSP, Director of Clinical Information Security at the Office of Information Security of Mayo Clinic.  He will discuss how healthcare providers can effectively address today’s people, process, and technology challenges as they pertain to cybersecurity.  Mr. McDonald will also discuss best practices and reference standards which may be helpful in overcoming these challenges.  Registration information for this event, along with other details about the community, can be found on the HMSS Cybersecurity Community web site, at http://www.himss.org/get-involved/community/cybersecurity.

How to join the community (you must be a member of HIMSS):
1. Log into the HIMSS member portal at https://marketplace.himss.org/My-Account/Participation
2. Under the “My Involvement” tab, click on the "Edit Participations” button.
3. Select "Healthcare Cybersecurity Community" and click on the “Save” button.

After you have completed steps 1 through 3, you will be automatically added to the HIMSS Healthcare Cybersecurity Community itself as well as the ListServ. 

Report Shows 84% of Mobile Health Apps Are Insecure

On January 13, 2016, Healthcare IT News reported that a new report shows 84  percent of U.S. FDA-approved health apps tested by IT security vendor Arxan Technologies did not adequately address at least two of the Open Web Application Security Project top 10 risks.  Most health apps are susceptible to code tampering and reverse-engineering, and 95% of the FDA-approved apps lack binary protection and have insufficient transport layer protection, leaving them open to hacks that could result in privacy violations, theft of personal health information, as well as device tampering and patient safety issues.  The article is available at:  http://www.healthcareitnews.com/news/8-out-10-mobile-health-apps-open-hipaa-violations-hacking-data-theft  

HHS Issues Guidance on Individuals’ Right of Access to PHI

On January 7, 2016, The US Department of Health and Human Services issued new guidance on individuals’ right to access their health information. The guidance includes general information and specifics about the details of proper implementation, and also includes an extensive Q&A section providing additional information.  If this guidance is an indication of the quality of information we should expect from HHS on the Web, it’s a good sign.  If you have questions on providing access under HIPAA, look here first.  http://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html  

By the way, this new guidance is provided on the completely revamped HHS Web site, which is now much easier to use and search for information, even on your smart phone.  Happy exploring!  (Yes, I have good things to say about the HHS Web site!)

HIPAA Rule Issued to Ease Reporting to the NICS re Firearms

On January 6, 2016, a new rule was published in the Federal Register to modify HIPAA §164.512, adding a new section (k)(7) to allow use or disclosure of PHI for purposes of reporting to the National Instant Criminal Background Check System the identity of an individual who is prohibited from possessing a firearm.  Disclosures may include only the limited demographic and certain other information needed for purposes of reporting to the NICS, and may not include diagnostic or clinical information.  The new rule is available at:  https://www.federalregister.gov/articles/2016/01/06/2015-33181/health-insurance-portability-and-accountability-act-hipaa-privacy-rule-and-the-national-instant  


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