New HIPAA Penalties are now available from the Department of Health and Human Services after it published a notice on April 30th. HHS is exercising its discretion in how it applies its regulations on the assessment of Civil Monetary Penalties (CMPs) under HIPAA. Currently HHS applied the same cumulative annual limit to the four categories of violations.
Pending further rule making HHS will now apply different cumulative annual CMP limits. This will be instead of the maximum $1.5 million for each level of violation. This is a reduction in the maximum limit, scaling down based on the level of culpability. Consequently HHS will use the new penalty structure until further notice. It is important to understand the new HIPAA Penalties from HHS.
Based on four categories of culpability HHS has provided covered entities and business associates with a whole new structure for penalties. In mostcases the amount of penalty will be significantly less than what we have experienced in the past.
For a category of no knowledge the minimum penalty is now $100, and the annual limit will be $25,000 down from $1.5 million.
For a reasonable cause $1,000 is the minimum and $100,000 for an annual limit down from $1.5 million.
Next, willful neglect with a correction it would be $10,000 as a minimum and $250,000 for annual limit.
Finally the highest is for Willful neglect with no correction with $50,000 as a minimum with an annual limit of $1,500,000.
This new guidance changes significantly the penalty structure for HIPAA violations and must be considered and understood by covered entities and business associates who deal with protected health information.
To read this important notice on new HIPAA Penalties from HHS, visit the Federal Register using the link below.
Reasonable Safeguards for PHI are precautions that a prudent person must take to prevent a disclosure of Protected Health Information. To protect all forms of PHI: verbal, paper, and electronic, provides must apply these safeguards. They help prevent unauthorized uses or disclosures of PHI. In addition safeguards must be part of every privacy compliance plan. Organizations must share this with all members of the organization.
Safeguards for Verbal PHI
Apply Reasonable Safeguards for PHI to all of your verbal disclosures of Protected Health Information. When you work with a patient, first determine who is with the patient before discussing PHI. Secondly do not assume the patient permits disclosure of their PHI just because family or a friend is in the room with them. Ask who is with the patient and if the patient permits disclosure. Finally you may ask the persons to leave the room providing the patient an opportunity to object.
In addition, reasonable safeguards for PHI must apply to the use of all paper products to prevent these from reaching the wrong person. Providers must dispose of all paper products that have PHI in a shredder once no longer used. Personnel must make every effort to give the patients summary to the correct patient. When a paper patient summary is given to a patient, every effort must be made to give it to the correct patient.
Password protect all computers in order to protect electronic PHI. Employees must only use the computer medical accounts to which they are assigned. One must consider the use of encryption of any email or texts that contains ePHI.
Use of Reasonable Safeguards for PHI Prevent Violations
In conclusion the use of reasonable safeguards may be the difference between an Office for Civil Rights finding of a privacy violation or a finding that an incidental disclosure occurred. The latter is secondary to a permissible disclosure, and not a violation. Reasonable safeguards protect PHI and help prevent you from violating patient privacy.
Sometimes it is hard to determine under what circumstances PHI disclosure to law enforcement is permissible. For example, HIPAA permits disclosures to law enforcement in certain situations. It is reasonable to disclose if a signed authorization from the patient or their legal representative exists .
When to Respond
The HIPAA Rule permits disclosures when required by law. This may be necessary to respond to subpoena’s and court orders with specific requirements. In addition this may be necessary to investigate a crime, to locate a missing person and to prevent serious threats to public health and safety. State law requires reporting for reports of child and adult abuse and neglect, and to report certain injury and disease.
Besides considering the federal HIPAA law, review state law because it may be more protective than HIPAA. If that is the case the entity must follow state law. It is important for your organization to know what are the permissible disclosures to law enforcement.
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A covered entity must have a procedure for filing a HIPAA privacy complaint by individuals regarding its privacy practices or for an alleged violation of the Privacy Rule. Most importantly the Notice of Privacy Practices must contain contact information for the covered entity’s privacy officer and information on how to submit a complaint to the Office for Civil Rights. In addition, an organization must file complaints within 180 days of when you knew the violation occurred.
The privacy officer or designee investigates all complaints involving privacy of protected health information. The organization should maintain records on the complaints and their resolution. The Privacy Officer will determine whether or not there has been a violation or a breach of unsecured PHI. In a filing to the OCR, there should be information about the complainant. There should be details of the complaint and any additional information that might help OCR when reviewing the complaint.
On behalf of the covered entity, the Privacy Officer will respond to inquiries initiated by the Office for Civll Rights as it investigates complaints.
No Retaliation for Filing a Privacy Complaint
Above all an organization must not retaliate for filing a HIPAA privacy complaint under the HIPAA rules. Most importantly, an organization must encourage employees to file a complaint if they feel a violation took place. Finally, an organization must resolve and prevent them from happening again which helps protect the organization. On the other hand, an employee may complain directly to the OCR if retaliatory action occurred.
In conclusion there must be a good process for filing a privacy complaint and there should be not retaliation for doing so.
This is your HIPAA ABCs brought to you by HIPAA Associates. Contact us for more information on this important topic.