New technologies in healthcare means new risk to the security and privacy of patient health data. Though most healthcare companies and providers are aware of the need for internal data security, many may not be in compliance when sharing information with third parties. As providers and vendors find new and innovative ways to work together, the need for data sharing will only increase. It is critically important that all parties know when and how protected health information (PHI) is shared, and when patient authorization is required to do so.
In October, The Health and Human Services Office for Civil Rights (OCR) shared that future health-care privacy and security audits will shift from an educational focus to an enforcement focus. Previously, OCR performed these audits to educate providers on patient privacy and HIPAA. But now, the priority is enforcement. Instead of relying on complaints and breach notifications, the OCR will be more proactive in identifying problem providers. It’s important for all healthcare provider entities to have a HIPAA compliance plan actively in use. (We can help!)
As all health care providers know, the HIPAA Privacy Rule applies to their practice. But because many providers outsource some of their health care activities and/or functions, the HIPAA Privacy Rule also applies to these “business associates".” It is important that providers have assurances in writing that all business associates are appropriately safeguarding patient information and following all HIPAA provisions. The HHS Office for Civil Rights has issued a new fact sheet that lays out all provisions where the business associate would be held directly liable for HIPAA Rule violations.
Nixon Law Group Managing Partner, Carrie Nixon, was interviewed by Randy Wong, M.D. for an episode of the Healthcare's Prescription with Russ & Randy podcast. During the episode, Carrie discusses privacy protections for medical practice websites.
This article discusses how you can lower your risk through email encryption, thereby saving your healthcare practice or organization from an expensive data breach. Email encryption can help your organization protect against the most common form of data breach and better comply with HIPAA standards.
Beginning on May 25, 2018, HIPAA won’t be the only healthcare data security standard with which U.S. companies have to comply. Medical practices, digital healthcare companies, and vendors (e.g., electronic health records companies, medical billing companies, and cloud services companies) that do business in the healthcare sector and collect data from European citizens will be required to comply with the new EU General Data Protection Regulation (the “GDPR”). A recent Reuters article called the implementation of these regulations “the biggest overhaul of online privacy since the birth of the internet.”
On December 28, 2017, the Centers for Medicare & Medicaid Services (CMS) released a Memorandum (the “Memo”), effective immediately, that represents a clear change to previous guidance on the use of SMS Text Messaging or “texting” by healthcare providers to transmit patient information to other providers that are part of a patient’s care team.
On January 2, 2018, the Substance Abuse and Mental Health Services Administration (“SAMHSA”) issued a Final Rule, amending 42 C.F.R Part 2 (“Part 2”), creating new changes to the federal rules governing confidentiality and disclosures of patient substance use disorder (“SUD”) records for the first time since 1987. Part 2 protects the confidentiality of SUD records, which are subset of protected health information (PHI). This means that these records are subject to HIPAA, but are also protected by Part 2, which contains additional (and more stringent) federal protections. These overlapping standards can make the storage and disclosure of patient records administratively burdensome for healthcare providers, patients and their families. It is also a challenge for technology companies that store, analyze, and transmit patient records on behalf of providers and patients.
Earlier this year, a federally qualified health center, Metro Community Provider Network (“MCPN”) paid a $400,000 HIPAA breach penalty related to a 2011 phishing attack. In this attack, several MCPN employees had their email accounts hacked by a phisher who was able to gain access to about 3,200 individuals’ PHI.
Healthcare providers are highly sensitive to the risks introduced by recordings in the workplace—not the least of which are potential violations of federal and state laws regarding the privacy of their patients and residents. We have often advised our healthcare clients to enact restrictions on recordings that could introduce unnecessary risk, but a National Labor Relations Board (NLRB) decision, recently upheld by the U.S. Court of Appeals for the Second Circuit, indicates that those same restrictions on recordings might, in and of themselves, introduce compliance risk. In its decision, the NLRB had to determine whether no-recording policies maintained by employer Whole Foods were overly broad by prohibiting all recordings by Whole Foods employees without prior management approval. The NLRB’s position seems clear: Policies reasonably read as prohibiting all employee workplace recordings violate the National Labor Relations Act.
Caitlin Riccobono, Esq., Counsel at Nixon Law Group, develops these routine “Partners Pointers” for the Virginia-based healthcare organization Partners in Healthcare.
Topic: Business Associates of Business Associates
I was asked to address two main questions regarding a Business Associate that is a subcontractor of another Business Associate (we will call this a “Sub-BA”). First, to what extent is a Sub-BA permitted access to PHI? Second, what are the Sub-BA’s obligations with respect to safeguarding PHI?
We often advise our clients that one of the criteria separating a “high risk” breach from a “low risk” breach is whether the breach affects more or fewer than 500 individuals. This is because the HHS Office of Civil Rights (which is the HIPAA enforcement arm of HHS) has historically prioritized investigation of and corrective action following breaches affecting in excess of 500 individuals—OCR’s Regional Offices investigate all reported breaches involving the PHI of 500 or more individuals. However, OCR recently announced that it would be teaming up with its regional office staff to more widely investigate HIPAA breaches affecting fewer than 500 individuals—sending a strong signal to covered entities and business associates that no one is “safe” from repercussions emanating from a HIPAA breach.