Be Smart About Using Your Smart Phone in Practice: Understand and Manage the Risks Involved in Using Smart Phones and Tablets in Medical Practice

Thousands of people lose or have their smart phones and other portable devices stolen every day. While most people worry only about the irritation of replacing their phone in such a situation, when a health care professional loses a portable device containing patient information, the irritation of replacing the phone is the least of their worries. With the government handing out million dollar plus penalties for the mistreatment of patient information, now is the time to ensure your practice is best positioned to deal with the inevitable loss of a smart phone.

To view the presentation slides from speakers Erin McAlpin Eiselein, Partner at Davis Graham & Stubbs LLP, and Dr. Marion Jenkins, CEO of QSE Technologies, which were presented last Thursday, July 14th, at a seminar and cover best practices for health care providers who use smart phones and tablets in their medical practice, please click here. Learn how to minimize risk and avoid potential liability under the federal and state privacy and security laws so that the loss of a phone does not turn into the loss of your practice.

Improper Release of PHI Draws Criminal Indictment

A physician in Virginia has been criminally indicted and charged with three counts of violating HIPAA in connection with release of protected health information ("PHI") to a patient's employer.  This criminal charge is unique in that it does not allege that the physician released the PHI for personal gain.  Instead, the charges are based on the fact that improper release was made "under the false pretenses that the disclosure of said information was necessary . . . . "  Specifically, the physician knew that the patient was not a serious and imminent threat to the safety of the public, but used that as a basis upon which to release the PHI to the patient's employer.

This indictment demonstrates that the government will pursue criminal charges if it disagrees with a health care provider's rationale for releasing PHI.  Health care providers should continue to carefully adhere to their HIPAA privacy policies when releasing any PHI, and consult with legal counsel in the event that they are unsure whether a release of PHI is permitted under HIPAA.       

OCR Strikes Again: Mass General Pays $1 Million to Settle HIPAA Violations

On the heels of the Cignet Health civil monetary penalty for $4.3 million only two days ago, the OCR has announced today that Mass General, one of the country's oldest and largest hospitals, has agreed to pay HHS $1 million to settle potential HIPAA violations.  The incident leading to this settlement involved an employee who brought documents on the subway with her, as she intended to work on them at home.  Unfortunately for Mass General, those documents contained PHI of 192 individuals and the employee accidentallty left the documents on the subway.  In addition to the million dollar payment, Mass General also agreed to enter into a Corrective Action Plan, which requires the hospital to develop additional privacy policies and procedures, ensure that employees complete additional HIPAA training, and provide HHS with semi-annual reports for the next three years.  The settlement agreement and Corrective Action Plan are available here.

It's a First - HIPAA Violation Costs Cignet Health $4.3 million

HHS imposed the first civil monetary penalty for a HIPAA violation against Cignet Health.  The $4.3 million penalty arose from Cignet's failure to allow 41 patients access to their medical records.  It was then exacerbated by Cignet's refusal to cooperate with the OCR's investigation.  Cignet's willful neglect of its obligation to cooperate with the government investigation ultimately cost it $3 million on top of the $1.3 CMP imposed for the underlying access violation.  Lest there be any lingering doubt, ignoring a government investigation won't make it go away!

HHS Withdraws HIPAA Breach Notification Final Rule

The HHS final rule on breach notification was submitted to the OMB on May 14, 2010, which is typically the final step before the final rule is published. HHS, however, “withdrew” the final rule from the OMB to “allow for further consideration, given the Department’s experience to date in administering the regulations,” as it stated in a notice posted on the HHS website. HHS failed to explain the reason for withdrawing the final rule for further consideration except to note that the breach notification issue is “complex.” 

The breach notification interim final rule issued pursuant to the HITECH Act, was published in the Federal Register on August 24, 2009, and became effective on September 23, 2009. According to HHS, during the 60-day public comment period on the interim final rule, HHS received approximately 120 comments.

Many in the industry have speculated that this withdrawal may be related to the controversial “harm” threshold set forth in the rule. Under the harm threshold, a provider only needs to notify patients about a data breach if the provider determines that the breach presents a significant risk of harm to the patients. Critics of the harm threshold contend that all breaches should be disclosed and providers should not have the discretion to make such a risk assessment.

A final rule is expected in the coming months. This withdrawal does not have an impact on the interim final rule.

New OCR Rule Strengthens HIPAA Requirements

Yesterday the Office for Civil Rights (“OCR”) released a Proposed Rule modifying the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) requirements. OCR issued this Proposed Rule pursuant to the Health Information Technology for Economic and Clinical Health (“HITECH”) Act. The Proposed Rule will not be published in the Federal Register until July 14, 2010, and there will be 60 days from that date to comment.

More specifically, this Proposed Rule modifies and strengthens the HIPAA Privacy Rule, Security Rule, and Enforcement Rule as well as the penalties and investigation provisions. The most notable changes include the following:

  • The requirements of the Privacy Rule and Security Rule will apply to business associates in the same manner they currently apply to covered entities.
  • Subcontractors of business associates will be considered business associates, and the business associate must obtain “satisfactory assurances” through a contract or other arrangement that the subcontractor will comply with the applicable privacy and security requirements. 
  • There will be new limitations on the use and disclosure of protected health information (“PHI”) in marketing and fundraising, including a requirement that individuals be given opportunities to opt out of receiving marketing or fundraising materials without any impact on their future treatment.
  • Covered entities and business associates will be prohibited from selling an individual’s PHI without that individual’s authorization, and covered entities will not be allowed to coerce patients into authorization by conditioning treatment, payment, enrollment, or eligibility for benefits on authorization.
  • The Proposed Rule expands patients’ rights by allowing patients to request that a covered entity restrict uses or disclosures of their PHI, and by giving patients greater access to copies of their electronic health records.
  • Covered entities’ Notice of Privacy Practices given to patients must include additional information, such as the authorization requirements described above.
  • Penalties for violations of HIPAA privacy and security requirements will be increased to $1.5 million per calendar year for violations of the same requirement or prohibition.
  • The Proposed Rule defines the terms “reasonable cause,” “reasonable diligence,” and "willful neglect,” which provide the basis for the various categories of liability under the Enforcement Rule.
  • Covered entities will have certain identified responsibilities during complaint investigations and compliance reviews.

Red Flags Rule Enforcement Postponed until Court Ruling

The Federal Trade Commission (“FTC”) and several medical associations have agreed to a joint stipulation that the FTC would not enforce its Red Flags Rule with respect to physician members of various associations until the DC Circuit rules on the American Bar Association’s pending action challenging the Red Flags Rule. Although the FTC has already announced that it will again delay the deadline for compliance with the Red Flags Rule until December 31, 2010, this stipulation may extend further the compliance deadline for physicians in the medical associations and state medical societies referred to in the case.

Congress Calls on HHS to Strengthen Breach Notification Rules

In a letter issued on October 1st, Congressional House leaders of the Energy and Commerce and Ways and Means committees oppose “the high bar” that the Department of Health and Human Services (HHS) has set for breach notification.

The breach notification regulations were enacted pursuant to the American Recovery and Reinvestment Act of 2009 (ARRA).  Published as interim final regulations in the Federal Register on August 24, 2009, they require health care entities to notify individuals and HHS if there has been an unauthorized use or disclosure (‘breach”) of electronic personal health data. 
These regulations, however, include a “substantial harm” standard, which does not require breach notification to individuals or HHS if the breaching entity believes there is no significant risk of financial, reputational or other harm to the individual.

According to the letter, the substantial harm standard is not consistent with Congressional intent. “In drafting [the enacting statute], Committee members specifically considered and rejected such a standard due to concerns over the breadth of discretion that would be given to breaching entities, particularly with regard to determining something as subjective as harm from the release of sensitive and personal health information.”

The letter urges HHS to revise or repeal the harm standard provision and calls for greater transparency through a “black and white standard,” which would allow individuals to assess the level of harm caused by a breach of their health information, and permit them to judge the quality of an entity’s privacy protection based on the true number of breach occurrences.

Greater Protection for Genetic Information

Genetic information soon will be more stringently protected thanks to regulations published today by the United States Departments of Health and Human Services, Labor, and the Treasury.  The Genetic Information Nondiscrimination Act of 2008 ("GINA") prohibits health insurers, health plans, and employers from discriminating against individuals based upon their genetic information.  Under the interim final rules, group health plans and group and individual issuers may not do such things as raise premiums or impose pre-existing condition exclusions based upon genetic information, and they may not use genetic information for underwriting purposes.  These rules will become effective on December 7, 2009.

The Office of Civil Rights ("OCR") also issued proposed rules today modifying HIPAA in accordance with GINA.  If these rules are implemented in their current form, "genetic information" will be a defined term and the definition of "health information" will be modified to expressly include genetic information.  Among other things, the proposed rules will prohibit health plans from using or disclosing genetic information for underwriting purposes and will require their notices of privacy practices to reflect this prohibition.  The public has sixty days, up to and including December 7, 2009, to submit comments to the OCR.


FTC and HHS Issue Breach Notification Rules for Electronic Health Information

As part of the American Recovery and Reinvestment Act of 2009 (the “Recovery Act”), Congress directed the Federal Trade Commission (“FTC”) and the Department of Health and Human Services (“HHS”) to issue rules requiring certain entities to notify consumers if there has been a breach in the security of their personal health information. 

The FTC rule applies to vendors of personal health records, which provide online repositories for storage and tracking of health information, and entities that offer third-party applications for personal health records. These applications could include, for example, a blood pressure cuff whose readings consumers can upload to their personal health record. 

The HHS rule, developed by the Office for Civil Rights (OCR), applies to healthcare providers and other HIPAA covered entities.

Under the rules, those entities subject to either rule must notify consumers if there is a “breach” involving their “unsecured” health information. Additionally, if a service provider or business associate of one of the entities has a breach of its own, it must notify the entity, which in turn must notify consumers.

A “breach” is defined as the unauthorized acquisition, access, use, or disclosure of protected health information, which results in the compromise of the security or privacy of such information.

Entities that secure their electronic health records through encryption or destruction are not required to provide notification in the event of a breach, as long as they follow HHS guidance on the proper methods of securing information. As an accompaniment to its rule, HHS issued an update to its current guidance (PDF) on acceptable encryption and destruction methodologies, which would render sensitive information unusable to unauthorized individuals. The policy on encryption is technical in nature and entities would be well-advised to have their IT consultants carefully review, and as deemed necessary, implement the HHS guidance.

Notification Requirements:  

In the event that a breach is discovered, an entity subject to either the FTC or HHS rule must comply with certain notification requirements, including the timing, method, and content of notification.

    • Timing: A consumer must be notified of a breach to the security of their information “without unreasonable delay” and in no case later than 60 days after the discovery of a breach.
    • Method: Written notification must be provided to the individual via first-class mail at the individual’s last known address, or if the individual agrees, by electronic mail. Where the entity lacks sufficient contact information, a substitute form of  notice “reasonably calculated” to reach the individual must be issued. If the insufficient information involves less than 10 individuals, notice may be made by an alternative form of written information or by telephone. If the entity lacks adequate information for more than 10 individuals, the substitute notice must be placed in a conspicuous posting for a 90-day period, either on the home page of the website of the entity involved, or in major print or broadcast media in areas where the affected individuals are likely to reside.
    • Content: Notice must include, to the extent possible:

1. A description of the types of information that were involved in the breach (e.g., social security number, date of birth, diagnosis);

2. Any steps individuals should take to protect themselves from potential harm that could result from the breach;

3. A brief description of the steps that the entity is taking to investigate the breach, mitigate harm caused by the breach, and to protect against any additional breaches; and

4. Contact information for individuals to ask questions or obtain additional information. This contact information must contain a toll-free telephone number, email address, website, or postal address.

In addition to the above requirements, breaches involving 500 or more people must provide notice to prominent media outlets serving the state or jurisdiction where the breach occurred. 

Finally, entities subject to either rule must provide notification to the FTC (for non-HIPAA covered entities) or HHS (entities covered by HIPAA). The FTC has provided a standard form(PDF) which can be used to report an incident. This form requests information on the type of breach, the manner in which the breach occurred, the information involved, and what steps the entity is taking to investigate the breach.

The FTC final rule(PDF) will be published in the Federal Register shortly, and will be effective 30 days after publication. The FTC will begin enforcement 180 days after publication.

The HHS interim final rule (PDF) is effective 30 days after publication in the Federal Register (which should be sometime in mid-late September) and includes a 60-day comment period.