HIPAA Gap Analysis and a HIPAA Risk Analysis

HIPAA Gap Analysis
Learn about the HIPAA Gap Analysis

What is the difference between a HIPAA Gap Analysis and a HIPAA Risk Analysis?  Many organizations use these interchangeably, however, they are not correct in doing so.  Don’t make the same mistake. We can help you understand the difference.

Office of Civil Rights Requirements

The Office for Civil Rights clearly spelled out the steps and requirements for a HIPAA Security Risk Analysis.  As a result, it requires covered entities to conduct an accurate and thorough assessment. It must consider potential risks and vulnerabilities to the confidentiality, integrity and availability of electronic protected health information held by the organization.  Furthermore, entities must consider the potential risks, threats and vulnerabilities to all of the covered entities ePHI.  This includes all ePHI which is created received, maintained or transmitted, including the source or location of the ePHI

Understanding a HIPAA Gap Analysis

The HIPAA Rule does not require a HIPAA Gap Analysis.  The Gap Analysis is usually a limited evaluation of a covered entity or business associate’s organization to reveal whether there are certain policies, controls or safeguards required by the HIPAA.  As a result, it is important rules are in place and implemented. The HIPAA Gap analysis should begin with a review of all policies, procedures, processes, practices and systems. It must investigate all facilities that relate to privacy, uses and disclosures of PHI.

Gap Analysis Insufficient for HIPAA Rule

A Gap Analysis  does not satisfy the Security Risk Analysis requirement. It does not demonstrate an accurate and thorough analysis. In effect, it must consider all risks, threats  and vulnerabilities to all of the ePHI an entity creates, receives, maintains or transmits.  Consequently, the gap analysis is not equivalent to the risk analysis as it does not satisfy the rule as specified  by 45 C.F.R. §164.308(a)(ii)(A).  It is important to note that OCR expects a covered entity to document and implement all of the necessary regulations of the HIPAA Rule to obtain a Compliant rating.

Therefore, it is important to identify your covered entity’s needs and determine whether you require a Gap Analysis or Risk Analysis.  Assure that the vendor you engage is qualified to perform the specific type of analysis that you need. 

Media Creates Dangerous HIPAA Violations

Social Media
Social Media on iPhone

The Privacy Rule standards address the use and disclosure of individuals’ health information—called “protected health information” by organizations subject to the Privacy Rule — called “covered entities,” as well as standards for individuals’ privacy rights to understand and control how their health information is used. 

Death of Celebrities and HIPAA

With the recent deaths of several celebrity musicians, media outlets have an ever-growing source of news and information; some of which is dug up in less than lawful ways. Unfortunately this media creates HIPAA breaches.

HIPAA Cases In Point

The UCLA Medical Center recently had to pay $865,500 in fines for the negligence of patient (mostly celebrity) health information. These breaches constitute a serious risk for hospitals and health centers because the information leaks are often times easily traceable. The demand for media to obtain this information, even through breaches, is high considering the public craves information on the lives of their favorite celebrities but the repercussions can be great.

Employees can be surprisingly negligent with celebrities’ sensitive information. Workers have caused breaches at major hospitals. Cedars-Sinai Hospital in Los Angeles fired five employees and a student assistant in 2013. The hospital traced a breach of Kim Kardashian’s pregnancy information back to them.

Prince’s Medical Information Leak

This issue becomes relevant today considering the recent passing of Prince in April. His health was relatively fine before, and his death came as a shock to many. His death was a great mystery too many. TMZ reported Prince’s medical condition before any official public health announcements. Once again media creates HIPAA breaches.

HIPAA does not apply to TMZ. An employee of the hospital leaked the information. Consequently, the hospital is responsible for a breach of private information.

Just recently it was released that Prince died of a drug overdose but sensitive information can easily be leaked and create legal issues for health providers, especially when it makes its rounds in the news.

HIPAA Breaches Result From Media Coverage

While the demand for information and gossip on celebrities is high and can cloud better judgment, celebrities have the same rights as the rest of us under HIPAA. It is important to restrict media access to a hospital or health center and to inform employees of the legal ramifications of a HIPAA breach. Training employees is crucial and HIPAA Associates can make it easier for you through our expertise on HIPAA compliance and training.

Keep your team informed on standards of HIPAA — Contact HIPAA Associates today for your HIPAA training.

New HIPAA Penalties from HHS

New HIPAA Penalties
Judge handing out New HIPAA Penalties

 

Direction from HHS on Penalties

 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.

Read about Data Breaches.

The Four Categories

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.

Filing a HIPAA Privacy Complaint

Filing a  Privacy Complaint
How to File a Privacy Complaint.

Procedures for Making a Complaint

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.

Privacy Officer

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.

For more information.

HIPAA and Social Media can be Problematical

HIPAA and Social Media
Social Media and HIPAA

 

Benefits of Social Media

Social media offers many benefits for health care organizations because it allows interaction with patients and others.  It offers education, and services.  As a result, it is an essential communication and marketing tool and part of strategic marketing plans.  Due to this organizations turn to social media to communicate with their employees. Unfortunately HIPAA and Social Media can be problematical.

Authorization to use PHI

It is possible to violate HIPAA Rules and patient privacy while using social media, if not managed correctly.  Due to this it is important for health care organizations to disclose protected health information carefully.   An organization must do so only with patient authorization for interviews, photographs and marketing communications.

Media Posts May Risk Privacy

Posts of PHI done by employees will violate the HIPAA Rules and result in a reportable breach of PHI. Social media posts are not a permissible use or disclosure of PHI.   The ability to post simultaneously in several platforms increases the risk for an organization. Remember that to de-identify PHI,  all 18 identifiers must be removed.   There must also be low risk it could be used to identify the patient. Facial images, and other identifiers such as tattoos must also be removed.    Learn more.

Preventing HIPAA Privacy Risk

Employees should be trained on the dangers of using social media inappropriately from the very onset of their employment.  Many organizations deal with the issue through development of a social media use policy.   They also monitor social media activity.  If not addressed, HIPAA and Social Media can be problematical.

Healthcare Data Breaches Increased

Healthcare Data Breaches
Preventing Healthcare Data Breaches

Exposed PHI Remains a Problem

The Office of Civil Rights reports that healthcare data breaches increased continuously over the last few months of this year.  For example, there were a total of 41 breaches in April affecting a greater number of people than previous months.  The breaches affected a total of 894,874 records.  Unfortunately, over the years since 2009, the number of breaches of over 500 records increased from 18 to 365.  Meanwhile, 2018 was the worst in number of breaches but only the fourth in total numbers. Presently in 2020 there are many cases still under investigation.

Unauthorized Access a Cause of Breaches

The healthcare industry continues to be a big target for hackers as healthcare data breaches increase.  In 2018 there was 161% more healthcare records involved. Unauthorized access/disclosure incidents was one of the biggest cause of breaches. The mean breach size of unauthorized access increased by 115% percent. Fortunately, loss, theft and improper disposal incidents appear to have all declined.  Despite the bad news it is likely that cyber security defenses have been effective in preventing hackers from gaining access to data.

Phishing is a Risk

Most importantly, the data from 2018 highlights the importance of increasing email security in addition to training employees.  One main cause of healthcare breaches in the month of April was due to phishing attacks.  For instance, in April nine cases of successful phishing attack related breaches were reported.  Other causes are unauthorized email access and misdirected emails.  In conclusion, it will be important to improve technology to prevent the delivery of malicious emails to inboxes of healthcare workers.

Exposed PHI Remains a Problem

In short, it appears that 75% of breaches affected healthcare providers, 14% health plans and 11% business associates of covered entities.  Most importantly, the breaches associated with business associates were the most severe and represented 42% of all exposed records.

It is in the best interest of covered entities and business associate to promote safeguards to protect PHI and train employees on this process.

SaveSave

SaveSave

Lack of HIPAA Policies

Lack of policies expensive

Big Settlement!

Settlement for HIPAA Violations

The Office for Civil Rights announced a settlement of potential violations of the HIPAA and Breach Notification Rules on December 27, 2013 with Adult & Pediatric Dermatology, P.C., of Concord, Mass., (AP Derm). Most important this indicates how lack of HIPAA policies is expensive.

As a consequence, AP Derm settled potential violations with the OCR for a $150,000 payment and a corrective action plan. In brief, AP Derm is a private dermatology practice with four locations in Massachusetts and two in New Hampshire.

Lack of Policies

This is the first settlement with a covered entity for not having policies and procedures in place to address the breach notification provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act. In addition, the covered entity did not conduct an accurate and thorough analysis of the potential risks and vulnerabilities.

Lack of Risk Analysis

The OCR investigated AP Derm after it received a report of a stolen unencrypted thumb drive from a vehicle of one of its staff members containing electronic PHI. Afterward, upon investigation, it was determined the group did not conduct a risk analysis of the potential vulnerabilities, did not fully comply with the Breach Notification Rule and failed to have written policies and procedures and train its employees.

Penalties for Violations

Most importantly, if you violate HIPAA the severity of the penalty may vary. Furthermore, the OCR prefers to resolve HIPAA violations using non-punitive measures, such as with voluntary compliance or  issuing technical guidance to help covered entities address areas of non-compliance. However, if the violations are serious financial penalties may be appropriate.

HIPAA Breach Leads to Lawsuit

Breach Resulted in a Lawsuit

The Privacy Rule

They key provisions of the Privacy rule are to protect any PHI that is held or transmitted by a covered entity or its business associate, in any form, whether electronic, paper, or verbal. This is the responsibility of all institutions that handle PHI. On occasion not everything goes according to plan and a breach does occur. It is important to know what to do at that time. We share with you a situation in which “HIPAA breach leads to lawsuit.”

Breach Notification

The Breach Notification rule requires covered entities to notify affected individuals, HHS and sometimes the media of the breach of unsecured PHI. In addition, notifications must be provided without unreasonable delay and no later than 60 days following the breach discovery. Notification of smaller breaches affecting fewer than 500 individuals may be submitted to HHS annually. This rule also requires business associates of covered entities to notify the covered entity of the breach. Above all, it is critical that the affected individuals be notified of the nature and extent of the breach. Our experts can provide you with important guidance on Breach Notification.

Hospital Faces Legal Battle

North Shore-Long Island Jewish Health System faced a widening legal battle over allegations that it failed to notify hundreds of patients that an identity-theft ring had stolen their unprotected confidential information. This breach resulted in a lawsuit.

Recently patients brought a lawsuit against New York State’s North Shore-Long Island Jewish Health System for $50 million for allegedly allowing a data breach that violated confidential patient information and failing to report this to the affected patients for almost a year.

Physician Files Lawsuit

The health system employs one of the people involved in the suit. She worked for North Shore-LIJ for 17 years and was a patient at a system hospital on Jan. 23, 2012, the lawsuit says.

Soon after, police in Arlington, Va., discovered the face sheet from Peterman’s procedure among a pile of documents confiscated during a routine traffic stop there. Eventually the health system learned of the discovery on Feb. 5, 2012, the lawsuit says, yet North Shore officials waited until March 20 to notify her.

In the meantime, Peterman received a bill from AT&T stating that someone had used her information to open five cell phone accounts and run up $2,292 in charges, damaging her credit rating.

Peterman works as an emergency room physician at the system’s 299-bed Huntington (N.Y.) Hospital, Lynam confirmed.

Summary of the Case

Twelve patients out of a group of 100 affected individuals filed a suit. An individual stole data from the North Shore University Hospital in Manhasset.  The information consisted of PHI including names, addresses, birthdays, phone numbers and Social Security numbers.  The health system sent letters to approximately 200 patients with compromised identity following the breach and offered them free credit monitoring.  Officials discovered and investigated the disclosure and one year after, the covered entity did the breach analysis.  Lawyers for the 12 patients say this was too little and too late to help their clients.

What you must know

The main issue, a provider must remember is to take breach reporting seriously to stay out of harms way. In today’s environment it is not whether but when a breach will affect an organization. It is important to be prepared.

HIPAA Associates is prepared to assist you with your breach reporting. We can make your job much easier.