Breaking Compliance News Blog

HIPAA & COVID-19 Toolkit UPDATED for new OCR Business Associate Guidance

Posted by Margaret Scavotto, JD, CHC on 4/2/20 3:08 PM

***To help providers with HIPAA compliance during the COVID-19 pandemic, all MPA HIPAA Tool Kits are now marked down to 50% off. 
 

Business Associate Disclosures during COVID-19

On April 2, 2020, the OCR issued a Notification of Enforcement Discretion under HIPAA to Allow Uses and Disclosures of Protected Health Information by Business Associates for Public Health and Health Oversight Activities in Response to COVID-19

This Notification, effective immediately, announces that the OCR will NOT impose HIPAA penalties against a business associate or covered entity under the following Privacy Rule provisions, in some circumstances. Enforcement is waived for the following Privacy Rule sections:

  • 45 CFR 164.502(a)(3): Business Associates: Permitted Uses and Disclosures
  • 45 CFR 164.502(e)(2): Disclosures to Business Associations: Documentation
  • 45 CFR 164.504(e)(1): Business Associate Contracts
  • 45 CFR 164.504(e)(5): Business Associate Contracts with Subcontractors

Enforcement of these sections will not occur in the following circumstances:

  • A business associate makes a good faith use or disclosure of the covered entity’s PHI for public health activities consistent with 45 CFR 164.512(b) or health oversight activities consistent with 45 CFR 164.512(d); AND
  • The business associate informs the covered entity within 10 calendar days after the use or disclosure occurs (or commences, with respect to uses or disclosures that will repeat over time).

If a business associate makes one of these disclosures, and the covered entity and business associate have not had time to update their business associate agreement to allow for such disclosures, OCR will not impose penalties.

An example of how this waiver might apply to you might be:

  • If a business associate is contacted by the local public health department and asked questions during a health investigation related to a COVID-19 patient. The business associate will be permitted to disclose information to the public health department. This type of disclosure is not typically permitted, if it is not specifically outlined in the BAA. However, under this waiver, the business associate may disclose the requested information to the public health department. Within 10 days of the disclosure to the public health department, the business associate must inform the covered entity that the disclosure was made. 

Business associates are STILL expected to comply with the Security Rule. For example, ePHI must be securely transmitted to the public health authority or health oversight agency.

MPA's HIPAA & COVID-19 Toolkit was updated April 2 for the new OCR guidance on business associates.

HIPAAtrek and MPA are here to help navigate and guide HIPAA compliance. Our priority is you – our clients, our healthcare providers, and healthcare administrators. We understand that this is a confusing and scary time. Now more than ever, please reach out with your compliance questions. We are here to help alleviate your compliance burden both now and in the future. Stay healthy.

Sincerely,

Margaret and Sarah

Check out our other HIPAA & COVID-19 blogs:

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Topics: HIPAA, data breach, security, COVID-19, privacy

HIPAA & COVID-19: telehealth

Posted by Margaret Scavotto, JD, CHC on 3/27/20 12:00 AM

Blog Series: Staying HIPAA Compliant During COVID-19

Sarah Badahman, CHPSE, Founder/CEO, HIPAAtrek, St. Louis 

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Topics: HIPAA, data breach, security, COVID-19, privacy

HIPAA & COVID-19: What HIPAA requirements are waived during COVID-19?

Posted by Margaret Scavotto, JD, CHC on 3/26/20 10:01 AM

Blog Series: Staying HIPAA Compliant During COVID-19

Sarah Badahman, CHPSE, Founder/CEO, HIPAAtrek, St. Louis 

Bethany Baty, Digital Marketing Director, HIPAAtrek, St. Louis

Margaret Scavotto, JD, CHC, President, MPA, St. Louis 

***To help providers with HIPAA compliance during the COVID-19 pandemic, all MPA HIPAA Tool Kits are now marked down to 50% off. 
 
A HIPAA & COVID-19 Telehealth policy was added to the Privacy and Security Tool Kits on 3/24 ***

Today is day four of a five day blog series on HIPAA issues that are relevant during COVID-19. Our goal is to help you remain compliant during these challenging times. ~ MPA and HIPPAtrek.

 

What HIPAA requirements are waived during COVID-19?

On March 16, the Office for Civil Rights (OCR) issued a bulletin in response to the COVID-19 outbreak: Limited Waiver of HIPAA Sanctions and Penalties During a Nationwide Public Health Emergency. For providers who followed the OCR’s waivers during Hurricanes Irma or Michael, this waiver should look familiar to you.

Who is covered by the waiver?

This waiver only applies to covered hospitals. All other providers must continue to follow HIPAA fully (with some leeway given under the Telehealth Waiver).

What’s waived

Under this waiver, as of March 15, 2020, the OCR waives sanctions and penalties against hospitals that do not follow these HIPAA Privacy Rule provisions:

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

The waiver ONLY applies to the COVID-19 public health emergency. To get the benefits of the waiver. Hospitals must:

  • have a disaster protocol in place
  • use the waiver for a maximum of 72 hours from the time the disaster protocol is implemented
  • resume complying with the Privacy Rule when the public health emergency ends.

What’s not waived?

The OCR’s waiver alert provides guidance on HIPAA practices that are not waived, and should be followed during the COVID-19 pandemic. Here is what is NOT waived:

  • The REST of the Privacy Rule. All Privacy Rule provisions not listed in the waiver must still be followed. Perhaps most importantly, providers must continue to follow the Minimum Necessary Rule wen making disclosures.
  • The waivers do NOT change how providers can communicate with the media. Follow your directory. For all other requests, get an authorization.
  • The Security Rule is NOT waived. Providers must still safeguard patient information with administrative, physical, and technical safeguards. With employees working from home and cyber scams on the rise, provider should take extra security precautions.

We encourage you to read the OCR’s Alert in its entirety to familiarize yourself with all of the OCR’s recommendations and reminders.

***To help providers with HIPAA compliance during the COVID-19 pandemic, all MPA HIPAA Tool Kits are now marked down to 50% off. 
 
A HIPAA & COVID-19 Telehealth policy was added to the Privacy and Security Tool Kits on 3/24 ***

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Topics: HIPAA, data breach, security, COVID-19, privacy

HIPAA & COVID-19: Watch out for COVID-19 cyber scams

Posted by Margaret Scavotto, JD, CHC on 3/25/20 9:56 AM

Blog Series: Staying HIPAA Compliant During COVID-19

Sarah Badahman, CHPSE, Founder/CEO, HIPAAtrek, St. Louis 

Bethany Baty, Digital Marketing Director, HIPAAtrek, St. Louis

Margaret Scavotto, JD, CHC, President, MPA, St. Louis 

***To help providers with HIPAA compliance during the COVID-19 pandemic, all MPA HIPAA Tool Kits are now marked down to 50% off.
 
A HIPAA & COVID-19 Telehealth policy was added to the Privacy and Security Tool Kits on 3/24.***

 

Today is day three of a five day blog series on HIPAA issues that are relevant during COVID-19. Our goal is to help you remain compliant during these challenging times. ~ MPA and HIPPAtrek.

Watch out for COVID-19 cyber scams

The Department of Homeland Security Cybersecurity and Infrastructure Security Agency (CISA) issued a warning about increased hacker activity during the coronavirus pandemic: Defending Against COVID-19 Cyber Scams.

In this Alert, CISA warns the nation to be on guard against an increase in malicious cyber activity:

Cyber actors may send emails with malicious attachments or links to fraudulent websites to trick victims into revealing sensitive information or donating to fraudulent charities or causes. Exercise caution in handling any email with a COVID-19-related subject line, attachment, or hyperlink, and be wary of social media pleas, texts, or calls related to COVID-19.

Likewise, the FBI addressed an “unprecedented wave” of cyber-attacks in the U.S.

Sadly, hackers are focusing their efforts on the three states hit the hardest by coronavirus: California, New York, and Washington – and hackers are targeting employees working from home. As the virus spreads in more states, this focus could broaden.

On Monday, the OIG sent out a Fraud Alert warning the public about a new fraud scheme preying on COVID-19 fears. Individuals are using telemarketing, social media, and in-person solicitation to offer COVID-19 tests to Medicare beneficiaries. The scammers obtain patients' personal information and Medicare information, and use it to submit fraudulent Medicare claims and commit identity theft. Individuals who think they need to be tested for COVID-19 should contact their physician or the health department, rather than responding to a solicitation.

CISA outlines precautions you can take to increase your security defense against COVID-19 inspired cyber-attacks:

In addition, now would be a good time to increase training on phishing scams and other malicious attacks. Consider providing staff with examples of malicious emails for training purposes, or use phishing drills.

HIPAAtrek and MPA can help make HIPAA compliance easier with policy downloads, training, and HIPAA software. Let us know if we can help. 

***To help providers with HIPAA compliance during the COVID-19 pandemic, all MPA HIPAA Tool Kits are now marked down to 50% off. 
 
HIPAA & COVID-19  Telehealth policy was added to the Privacy and Security Tool Kits on 3/24 ***

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Topics: HIPAA, data breach, security, COVID-19, privacy

* Breaking News: OCR announces $1.6 million HIPAA penalty

Posted by Margaret Scavotto, JD, CHC on 11/7/19 3:04 PM

This afternoon, the Office for Civil Rights announced its second HIPAA enforcement this week - this time, with a governmental agency. 

The Texas Health and Human Services Commission (TX HHSC) received a $1.6 million civil monetary penalty from the OCR for HIPAA Privacy and Security violations committed by the Texas Department of Aging and Disability Services (DADS), which is now part of TX HHSC.

In 2015, DADS notified OCR of a breach after it discovered that the ePHI for 6,617 individuals was accessible via the internet. OCR explains:

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Topics: HIPAA, data breach, security, breach notification

* Breaking News: $3 million unencrypted mobile device HIPAA settlement

Posted by Margaret Scavotto, JD, CHC on 11/5/19 3:36 PM

This afternoon, the Office for Civil Rights (OCR) announced a $3,000,000 HIPAA settlement with the University of Rochester Medical Center (URMC). This settlement resolves Privacy and Security Rule allegations.

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Topics: HIPAA, data breach, security

Email HIPAA Breaches On the Rise

Posted by Margaret Scavotto, JD, CHC on 9/18/19 7:29 AM

According to the U.S. Department of Health and Human Services Office for Civil Rights (OCR), email breaches are on the rise.

The OCR maintains a database of breaches of unsecured protected health information affecting at least 500 individuals. MPA crunched some numbers, looking at OCR breach reports still under investigation for each six month period for the past 24 months. The number of email breaches reported to the OCR between the second half of 2017 and the first half of 2019 more than quintupled.

Let’s look at some real world examples to see how email use can breach HIPAA.

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Topics: HIPAA, data breach, security

Not-for-profit provider hit with ransomware twice in four months

Posted by Scott Gima on 8/28/19 6:35 AM

A not-for-profit community health center that provides health care for low-income and uninsured patients experienced two ransomware attacks in a four-month period. 

 

The first attack shut down computers for three weeks while the center rebuilt its systems from backups, and did not pay the ransom. This approach is consistent with industry advice for two reasons. First, there is no guarantee that the data will be reinstated after ransom is paid. Second, paying ransom encourages future ransomware attacks.

The second attack likewise locked the center out of its medical records.

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Topics: HIPAA, data breach, security

HIPAA breaches are everywhere: Are your employees prepared?

Posted by Margaret Scavotto, JD, CHC on 12/13/18 2:01 PM

A hospital OR secretary was fired after she accessed the hospital's EHR to locate a co-worker's phone number.

A child's adoptive parents sued a hospital for allegedly violating HIPAA when it notified the child's birth mother of his death.

Hospital employees clicked on links in emails that appeared to be from trusted sources, unleashing a spear phishing attack. Hackers accessed PHI for 63,000 individuals - some of whom are suing the hospital for failing to protect their privacy.

A patient is suing CVS for telling his wife about his Viagra prescription.

Some of you might read these (true) stories and view them as blatant, or at least ignorant, HIPAA violations. Or maybe you believe these are honest mistakes. I think it depends on whether, when, and how the healthcare employees involved were trained on HIPAA in a practical way.

In the CVS example, we can imagine a pharmacist or pharmacy tech at the register and taking phone calls. This person talks to people all day long about prescriptions - often prescriptions dropped off or picked up by a spouse. When is the last time this pharmacist was trained on when to share information with a spouse (and when to keep it confidential)?

Regarding the spear phishing example, I received two phishing email attempts today, and it's only 2:00 p.m. I recognized the emails as phony - but my day job involves HIPAA, and I read about HIPAA for fun. It's always on my mind. Would healthcare employees who spend their days scheduling patients, sending out EOBs, or providing care recognize suspicious emails? It depends on how well they have been trained, and how often.

HIPAA, like the rest of compliance, is not simply something for the lawyers or the compliance department to figure out.

Our compliance programs are only as strong as our weakest employees - and it's up to us to train them to get it right.

 

 

 

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Topics: HIPAA, Social Media, data breach, security

Anthem Makes HIPAA History

Posted by Margaret Scavotto, JD, CHC on 10/16/18 3:43 PM

In early 2015, Anthem announced the largest healthcare cyber-attack America has seen. Hackers accessed records of 79 million people. Affected patients brought class action lawsuits against Anthem. In 2017, the lawsuits settled for $115 million.

Yesterday, the OCR announced it has settled the underlying HIPAA violations of this data breach for a whopping $16 million. This settlement far exceeds the next-highest HIPAA settlement we have seen ($5.5 million), and brings 2018's average HIPAA settlement amount up to $4,978,000.

The OCR reported that hackers were able to infiltrate Anthem's system after at least one employee clicked on a spear phishing email. The OCR also found 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."

What you can do

Your HIPAA security strategy needs to address the HIPAA Security Rules. If you haven't already done so, conduct a HIPAA security risk analysis (or update yours, if it's time). Review HIPAA Security administrative, technical and security safeguards to make sure you have implemented measures to mitigate risks that could subject your organization to an attack.

And, don't forget to train your staff. The OCR noted that the Anthem breach started when potentially a single employee clicked on a spear phishing email.  You could have the most sophisticated HIPAA security defense available - but if employees can't recognize suspicious emails, you are still vulnerable to cyber-attacks.

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Topics: HIPAA, data breach, security

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