HIPAA Enforcement Update Provided by OCR’s Iliana Peters
Office for Civil Rights Senior Advisor for HIPAA Compliance and Enforcement, Iliana Peters, has given an update on OCR’s enforcement activities in a recent Health Care Compliance Association ‘Compliance Perspectives’ podcast.
OCR investigates all data breaches involving the exposure of theft of more than 500 healthcare records. OCR also investigates complaints about potential HIPAA violations. Those investigations continue to reveal similar non-compliance issues. Peters said many issues come up time and time again.
Peters confirmed that cases are chosen to move on to financial settlements when they involve particularly egregious HIPAA violations, but also when they relate to aspects of HIPAA Rules that are frequently violated. The settlements send a message to healthcare organizations about specific aspects of HIPAA Rules that must be addressed.
Peters said one of the most commonly encountered problems is the failure to conduct a comprehensive, organization-wide risk assessment and ensure any vulnerabilities identified are addressed through a HIPAA-compliant risk management process. Several recent settlements have highlighted just how frequently HIPAA covered entities get risk assessments wrong, either failing to conduct them at all, not conducting them frequently enough or conducting them to the standard demanded by HIPAA.
Peters pointed out that privacy violations are occurring frequently, with many HIPAA-covered entities still unsure of the allowable uses and disclosures of PHI. OCR recently announced two settlements have been reached with covered entities that have impermissibly disclosed patients’ health information to employers and the media.
Peters explained that the healthcare industry is not doing a good job at preventing cybersecurity incidents and that warrants attention, but it is important for OCR not to just focus on the hot topics and ‘sexy’ issues. OCR is also focussed on the lack of safeguards for paper records and the failure to secure removable media.
In the case of the latter, there have been numerous instances where ePHI has been exposed as a result of the failure to use encryption. Peters pointed out that if “[a device] can walk away from your enterprise, it will walk away.” OCR has settled cases with several organizations in recent months as a result of the lack of appropriate safeguards and policies and procedures covering removable devices.
Peters explained that OCR has been working on sharing penalties or other recoveries with individuals that have been harmed by privacy violations, although that has been a challenging process as it is difficult to determine and quantify harm. OCR is working on an advanced notice of proposed rulemaking and will be seeking advice from the public on how funds should be shared.
OCR is also working on initiatives to improve privacy protections at non-HIPAA covered entities. For instance, patients are being encouraged to share their health data with research organizations and through the “All of Us” initiative. For those programs to be as successful as they should be, patients need to be sure their data will be protected. OCR is providing advice to organizations and partners to ensure that patient data are protected, even if they are collected and stored by non-HIPAA-covered entities.
Peters also spoke of dealing with Certified EHR technology and how HIPAA applies to cloud computing, malware, and ransomware.
You can listen to the Compliance Perspectives podcast via this link.