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Are You Worried About Health Care Compliance Consequences? Have They Gone Too Far?

By Lance O. Leider, J.D., LL.M., The Health Law Firm

From large hospital systems to solo practitioners, there is no escaping health care compliance in the industry. The concept of compliance can spark different thoughts in different people. For example, some believe it is an unnecessary government intrusion and others believe it’s a way to improve the quality and costs of health care.

No matter your thoughts on health care compliance and government oversight, regulation of the health care industry will never be eliminated. In fact, we expect it to increase as more quality-based requirements are implemented.

We believe compliance and regulations are necessary, but we have to wonder if sometimes these laws go too far.

Those Cute Baby Photos Can Cost You.

As an example of laws going too far, photos of cooing newborn babies used to cover the bulletin boards of doctors’ offices. However, under the Health Insurance Portability and Accountability Act (HIPAA), these baby photos are considered protected health information, along the same lines as a medical chart or social security number. A report by The New York Times indicates many offices have removed these types of photos or moved them to private portions of the office. According to the Office for Civil Rights (OCR) Department of Health and Human Services (HHS), doctors’ offices are not allowed to post these photos without a specific written authorization from the parent.

To read more on this topic, click here.

Health Care Compliance Overview.

Health care compliance is the ongoing process of meeting or exceeding the legal, ethical and professional standards applicable to a particular health care organization or provider. Health care compliance requires health care organizations and providers to develop effective processes, policies, and procedures to define appropriate conduct, train the organization’s staff, and then monitor the adherence to the processes, polices and procedures.

Health care compliance covers numerous areas including patient care, billing, reimbursement, managed care contracting, OSHA, and HIPAA privacy and security to new a few.

To read a basic overview of health care compliance for organizations and providers, click here.

How to Deal with Compliance Overkill.

The primary purpose of health care compliance is to improve patient care. It is nearly impossible to overstate the complexity of health care compliance. Health care organizations and providers are not only required to comply with Medicare rules and regulations, but they are also required to comply with numerous other federal and state health care laws, rules and regulations.

When dealing with compliance issues, our recommendation is to use your common sense and best judgment. Fear usually leads to absurd situations. With all the fear and propaganda out there it is important to stick to your instincts and put patient care first.

Health care compliance is cumbersome, many may agree too cumbersome. However, it is here to stay.

Do you think health care compliance has gone too far? How do you try to keep up with health care compliance laws and regulations? Are you worried about compliance consequences?

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Sources:

Hartocollis, Anemona. “Baby Pictures at the Doctor’s? Cute, Sure, but Illegal.” The New York Times. (August 9, 2014). From: http://www.nytimes.com/2014/08/10/nyregion/baby-pictures-at-doctors-cute-sure-but-illegal.html?_r=0

Kirsch, M.D., Michael. “The Consequences of Zero Tolerance: Why HIPAA is Overkill.” Kevin M.D. (January 1, 2014). From: http://www.kevinmd.com/blog/2014/01/consequences-tolerance-hipaa-overkill.html

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

KeyWords: Health Insurance Portability and Accountability Act (HIPAA), HIPAA Omnibus Rule, HIPAA compliance, HIPAA lawyer, HIPAA compliance attorney, data security lawyer, protected health information (PHI), Patient privacy, U.S. Department of Health and Human Services (HHS), Office of Civil Rights (OCR), patient rights, HIPAA compliance audit, privacy defense attorney, health care compliance lawyer, compliance defense attorney, healthcare compliance defense lawyer, health care defense lawyer, HIPAA attorney, HIPAA lawyer, compliance plans, health law firm, The Health Law Firm, health law defense attorney, health care professional defense attorney, legal representation for healthcare professionals, reviews of The Health Law Firm, The Health Law Firm attorney reviews

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2018 The Health Law Firm. All rights reserved.

Dermatology Practice Settles with Government After Stolen USB Drive Results in HIPAA Breach

10 Indest-2008-7By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR), and Adult & Pediatric Dermatology (APDerm), reached a $150,000 settlement for privacy and security violations of the Health Insurance Portability and Accountability Act (HIPAA). The alleged violations related to an unencrypted USB drive that was stolen. The thumb drive contained the protected health information (PHI) of around 2,200 patients, according to a press release posted December 26, 2013, on the HHS website.

According to the HHS, 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.

To read the entire press release from the HHS, click here.

APDerm delivers dermatology services to patients in Massachusetts and New Hampshire.

Alleged Violations Stemmed from Stolen, Unencrypted USB Drive.

According to the HHS, the OCR initiated its investigation after being tipped off that an unencrypted thumb drive containing the PHI of about 2,200 patients was stolen from a vehicle of an APDerm staff member. According to Healthcare IT News the thumb drive was never recovered.

The investigation allegedly revealed that APDerm had not conducted an accurate and thorough analysis of the potential risks and vulnerabilities to the confidentiality of PHI as part of it security management process. It’s also alleged that APDerm failed to fully comply with the HITECH Breach Notification Rule, which requires organizations to have written policies and procedures in place and to train staff members.

According to Healthcare IT News, the settlement also includes a corrective action plan (CAP). The CAP requires the dermatology company to develop a risk analysis and risk management plan to address and mitigate any security risks and vulnerabilities. Click here to read the entire article on Healthcare IT News.

Warning to HIPAA Covered Entities Regarding Risk Assessments.

This settlement is an important reminder about equipment designed to retain electronic information. HIPAA covered entities are responsible for making sure all personal information is protected. Entities are also required to undertake a careful risk analysis to understand the threats and vulnerabilities to individuals’ data, and have safeguards in place to protect this information.

HIPAA laws have most likely changed since you last edited your privacy forms and procedures. Many health providers simply do not have the time to re-review their policies and revise documents. In a perfect practice, this would be done every six months.

To learn more on HIPAA risk assessments, click here.

Be Sensitive to Technical Equipment Containing Internal Memory.

In today’s technological society everyone must be continually vigilant about the machines and equipment used. Many different types of devices now contain internal memory chips and hard drives that may store data that is difficult to erase. These may include photocopiers, scanners and fax machines, in addition to computers and servers. Security videos and communications monitoring systems may also maintain such information. Backup tapes and modern cell phones are other possible examples. These should be professionally cleaned of all data or destroyed before discarding them, selling them or trading them in on newer models.

To read a previous blog on Affinity Health Plan settling with government in photocopier HIPAA breach incident, click here.

Practical Tips.

The following are some lessons learned from this case. Share them with others in your organization:

1. Ensure that all types of electronic media by which you transfer patient health information of any kind are encrypted. This includes thumb drives, CD ROMs, DVDs, backup tapes, mini hard drives and anything else.
2. Try not to remove any patient information from your work cite. If you need to work on it remotely, use a secure, encrypted internet connection to access your work data base. Avoid saving the work or data onto your laptop hard drive or other removable media.
3. Never leave your laptop or other media in a car you are having worked on by a mechanic, having an oil change, having the car washed, or while you run into a store. Thieves stake out such locations and are waiting for careless individuals to do this.
4. Never leave your laptop, thumb drive or other electronic media from work in your car. What can be worse than having your car stolen? Having your car stolen with your laptop in it with patient information on it.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Comments?

What do you think of this settlement? Does your office and/or practice have an annual security risk assessment? Do you think risk analyses are important? Please leave any thoughtful comments below.

Sources:

Millard, Mike. “Lost Thumb Drive Leads to $150K Fine.” Healthcare IT News. (December 30, 2013). From: http://www.healthcareitnews.com/news/lost-thumb-drive-leads-150k-fine

U.S. Department of Health and Human Services “Dermatology Practice Settles Potential HIPAA Violations.” HHS.gov. (December 26, 2013). From: http://www.hhs.gov/news/press/2013pres/12/20131226a.html

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Data Breach at Colorado Hospital Highlights IT Security Risks

Lance Leider headshotBy Lance O. Leider, J.D., The Health Law Firm

A small rural hospital in Glenwood Springs, Colorado, has identified a virus on its computer network that had captured and stored screen shots of protected health information in a hidden file system. The hidden folder was created on Sept. 23, 2013, but was not discovered until Jan. 23, 2014. The breach identified at least 5,400 individual patients whose information was compromised.

According to Healthcare IT News, among the stolen data was patient names, addresses, dates of birth, telephone numbers, Social Security numbers, credit card information, and admission and discharge dates.

Hospital officials have been unable to determine how the virus was loaded onto the hospital network, according to Healthcare IT News. Consequently, officials believe that there is “very high” probability that the data had been accessed by an outside entity.

To read the entire article from Healthcare IT News, click here.

Take Steps to Secure Your Network.

Breaches of this kind are not solely confined to hospitals and large providers. In fact, it may be that this hospital was targeted because it was a smaller provider in a rural area with easier access to its systems.

Viruses like the one in question could be loaded onto systems as a result of an outside attack (think hackers) or through inside means like a flash drive or deliberately opening an infected e-mail.

It is imperative that a Health Insurance Portability and Accountability Act (HIPAA) covered entity have an effective cyber security plan. Make sure that you have up-to-date anti-virus software and that your computers are secure from access by unauthorized personnel like cleaning crews or patients and their families. Also, meet with your IT professional to discuss security measures you can put in place such as restricting access and accessibility to certain files or the ability to download programs and applications to essential staff only.

Hacked data represents a growing share of HIPAA breaches. It is imperative that covered entities ensure their compliance with HIPAA to avoid any sanctions by the Office for Civil Rights (OCR). To date, the OCR has collected in excess of $18 million in fines and penalties for failures to secure patient information.

Get a Risk Assessment.

A HIPAA Risk Assessment is a thorough review and analysis of areas where you may have risk of violating the HIPAA laws. Federal regulations require that covered entities have this assessment done. When the OCR auditor comes to visit your office to check for HIPAA compliance, they will ask for your Risk Assessment. Do you have one? Does your staff know who your HIPAA compliance officer is? To learn more on HIPAA risk assessments, click here.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs), please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Comments?

Do you think it is likely that this hospital was targeted because it was a smaller provider in a rural area? Do you think a HIPAA risk assessment could have helped this practice avoid a breach? Please leave any thoughtful comments below.

Sources:

Harvey, Nelson. “Hospital Database Hacked, Patient Info Vulnerable.” Aspen Daily News. (March 15, 2014). From: http://www.aspendailynews.com/section/home/161578

McCann, Erin. “Small-Town Hospital Gets Hacked.” Healthcare IT News. (March 17, 2014). From: http://www.healthcareitnews.com/news/small-town-hospital-gets-hacked

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

HIPAA Fines, Mobile Devices and Risk Assessments: Follow the Steps or Pay the Price

Lance Leider headshotBy Lance O. Leider, J.D., The Health Law Firm

Two separate entities have agreed to pay the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) $1,975,220 in fines collectively. The settlements resolve potential violations of the Health Insurance Portability and Accountability Act (HIPAA) privacy and security rules involving stolen, unencrypted laptops. These two actions shine a light on the significant risk unencrypted laptops and other mobile devices pose to the security of patient information.

To read the press release from the HHS OCR, published on April 22, 2014, click here.

Concentra Received Risk Assessments, But Did Not Act on Findings.

According to the OCR, an investigation of Concentra Health Services, a subsidiary of Humana, was conducted after a laptop was stolen from a Missouri physician therapy center. This investigation revealed that Concentra had previously received multiple risk analyses that stated the company lacked encryption on its laptops, desktop computers, medical equipment, tablets and other devices containing electronic protected health information. Concentra’s efforts to remedy the risk were incomplete and inconsistent, leaving patients’ health information vulnerable. Concentra agreed to pay $1,725,220 to settle potential security violations and adopt a corrective action plan.

QCA Investigation.

The QCA Health Plan, Inc., investigation began in February 2012, after an unencrypted laptop containing the medical records of 148 individuals was stolen from an employee’s car. The investigation revealed that QCA failed to comply with multiple requirements of the HIPAA privacy and security rules. According to Modern Healthcare, the company is required to pay $250,000, as well as provide HHS with an updated risk analysis and corresponding risk-management plan.

Click here to read the entire article from Modern Healthcare.

Encrypt Laptops and Other Equipment or Pay the Price.

Encryption is one of your best defenses against incidents. These two settlements highlight the need for all entities to encrypt their laptops and other devices. Failing to do so may put that entity at risk for paying a large fine to the OCR and possible fines for state law violations.

HIPAA-covered entities are responsible for making sure all personal information is protected.

The following are some practical tips to use when handling protected health information. Share them with others in your organization:

1. Ensure that all types of electronic media by which you transfer patient health information of any kind are encrypted. This includes thumb drives, CD ROMs, DVDs, backup tapes, mini hard drives and anything else.
2. Try not to remove any patient information from your work site. If you need to work on it remotely, use a secure, encrypted internet connection to access your work database. Avoid saving the work or data onto your laptop hard drive or other removable media.
3. Never leave your laptop or other media in a car you are having worked on by a mechanic, having an oil change, having the car washed, or while you run into a store. Thieves stake out such locations and are waiting for careless individuals to do this.
4. Never leave your laptop, thumb drive or other electronic media from work in your car. What can be worse than having your car stolen? Having your car stolen with your laptop in it with patient information on it.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Comments?

Are the laptops and other mobile devices at your practice encrypted? Does your practice regularly perform HIPAA risk assessments? Please leave any thoughtful comments below.

Sources:

Conn, Joseph. “Unencrypted-Laptop Thefts at Center of Recent HIPAA Settlements.” Modern Healthcare. (April 23, 2014). From: http://www.modernhealthcare.com/article/20140423/NEWS/304239945/unencrypted-laptop-thefts-at-center-of-recent-hipaa-settlements

U.S. Department of Health and Human Services Press Office. “Stolen Laptops Lead to Important HIPAA Settlements.” U.S. Department of Health and Human Services. (April 22, 2014). From: http://www.hhs.gov/news/press/2014pres/04/20140422b.html

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Don’t Ring in the New Year with a HIPAA Audit – Safeguard Yourself Now

1 Indest-2008-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Here’s a scary reminder: There are people attempting to hack into electronic health systems every second of every day. Thankfully, most of these attempts are unsuccessful due to the preventive technologies in place to safeguard such information. However, electronic data will never be 100 percent secure.

Electronic health records promised was intended to be a tool for doctors to share patient data, reduce prescription drug errors, and allow patients convenient access to their records. However, since the transition to digital medical records, there have been concerns from patients about privacy, security and identity theft.

Recently, the Office for Civil Rights (OCR) announced that the agency will ramp up its Health Insurance Portability and Accountability Act (HIPAA) privacy and security audit program in 2015 for covered entities and business associates. These audits will focus on device encryptions, media controls, data transmission security protocols, and staff training on HIPAA policies and procedures.

Now is the time to ensure compliance.

Real World Privacy Breaches Happen All the Time.

On December 2, 2014, OCR and Anchorage Community Mental Health Services, Inc. (ACMHS), settled alleged violations of the HIPAA Security Rule. OCR started an investigation into ACMHS’s compliance with HIPAA after receiving a notification about a breach of unsecured electronic patient information affecting 2,743 individuals. The breach resulted from malware that compromised ACMHS’s information technology resources. According to the settlement, ACMHS must pay a $150,000 fine and enter into a resolution agreement and corrective action plan (CAP).

In November 2014, Beth Israel Deaconess Medical Center in Massachusetts agreed to a $100,000 settlement after a physician’s laptop was stolen from the hospital. The computer was not issued by the hospital and had not been encrypted in accordance with the hospital’s policies. However, the hospital was aware that the physician used the device. The laptop contained the health information and personal information, including Social Security numbers, of nearly 4,000 individuals. It’s alleged the hospital took three months to notify affected patients about the breach, which is a violation of HIPAA. (HIPAA requires such notifications to take place within 60 days.)

Tips to Protect Yourself and Your Business.

Again, the HIPAA audit program will be resuming after the first of the year. Accordingly, hundreds of covered entities and business associates will be receiving inquiries that could lead to an onsite audit. The audit requirements will be very difficult for organizations that have not planned in advance. Here are three easy-to-implement steps to prepare your practice.

1. Review the latest HIPAA policies and procedures. Make sure your office is meeting the latest privacy and security criteria. Identify gaps, update documents, and retrain staff on HIPAA policies and procedures. Don’t forget to document your educational efforts. Click here for a link to the latest policies and procedures.

2. Contact your business associates. Ask each of them to provide your practice with an updated Business Associate Agreement and list of all subcontractors they use. For business associates, the 2015 HIPAA audits will focus on risk analysis, risk management and updated policies and procedures for breach notification.

3. Have a risk assessment performed on your practice. To learn more about risk assessments, click here for a previous blog.

Also, a violation of the HIPAA privacy and security provisions does carry civil and criminal penalties. Anyone who is a health care professional or facility, should be aware of these legal provisions. Click here to read my previous blog.

HIPAA is Not One Size Fits All.

Protecting patient data is not a one-size-fits-all method, meaning that security measures and access to electronic records should not necessarily be uniform. There needs to be processes and check points in place at practices to ensure that the electronic health record system and its many users consistently meet HIPAA policies and procedures. Health care practices must be vigilant that when they integrate other medical practices and facilities into their organization that they extend these measures to incorporate new employees, new sites and locations, and various technologies.

As demonstrated throughout this blog, the risks of non-compliance simply outweigh the costs of sound preparation. If you’d like more information, contact a health law attorney experienced in these matters.

Comments?

Are you worried about the next round of HIPAA audits? Are you concerned about HIPAA violations? How are you ensuring compliance within your practice? Please leave any thoughtful comments below.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Sources:

Van Terheyden, Nick and Faix, Rob. “Digital Health Records: Pain and Gain.” Orlando Sentinel. (December 12, 2014). From: The Orlando Sentinel News Section on page A20.

“Beth Israel Agrees To Pay $100K To Settle 2012 Data Breach Case.” iHealthBeat. (November 25, 2014). From: http://www.ihealthbeat.org/articles/2014/11/25/beth-israel-agrees-to-pay-100k-to-settle-2012-data-breach-case?view=print

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.


“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

OCR Releases Results From First Round of HIPAA Audits

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The Office for Civil Rights’ (OCR) has release information on the initial round of mandated audits of Health Insurance Portability and Accountability Act (HIPAA) covered entities. The OCR announced official details concerning the audits at an OCR and National Institute of Standards and Technology (NIST) conference held June 6, 2012.

Initial HIPAA Audits Started November 2011.

As required by the HITECH Act, the OCR began auditing selected covered entities’ compliance with the privacy and security provisions of HIPAA and its implementing regulations in November 2011. The OCR selected 150 covered entities to be audited in the pilot phase by KPMG LLP (KPMG). KPMG is the audit contractor chosen by the OCR to perform HIPAA audits. The first 20 audits concluded in March 2012. More audits will continue to occur this year.

HIPAA Audit Process.

The HIPAA audit process was drafted by the OCR and KPMG in November 2011. Entities selected for an audit receive a notification letter from OCR and are asked to provide documentation to the auditor. Every audit includes a site visit. After the site visit and initial investigation, KPMG recommends suggested modifications for the entity to meet compliance standards in a draft audit report. The entity will have an opportunity to respond to the draft audit report, citing any findings made by KPMG that may be incorrect. KPMG then summarizes final results in a final audit report. The final audit report details how the audit was conducted; what the findings were and; what actions the covered entity is taking in response to those findings.

HIPAA Audit Results.

The results of the initial round of audits revealed that small covered entities had a lot more issues than large ones. Six of the 20 audited entities were small entities (e.g., $50 million or less in revenue). However, these small entities represented 66% of the deficiency findings. Additionally, the OCR reported that health care providers had more problems than plans or clearinghouses. A disproportionate number of the deficiencies were by health care providers. While providers represented 50% of the 20 audited entities, they were responsible for 81% of the deficiency findings.

The OCR also announced that the majority of the findings were related to the Security Rule. OCR indicated that this is partially attributable to more of the audit protocol focusing on security than privacy or breach notification.

To view the OCR’s presentation on HIPAA audit findings, click here.

Contact Health Law Attorneys Experienced in Audits of Health Providers.

The Health Law Firm represents physicians, medical practices, hospitals, and other health providers in audits, including Medicare audits, Medicaid audits, and HIPAA audits. The Health Law Firm also assists health providers in establishing compliance with HIPAA regulations. If you have received notification of an impending audit contact The Health Law Firm immediately.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources Include:

Greene, Adam H. and Rebecca L. Williams. “HIPAA Audits Results Released: We Still Have Work to Do.” JD Supra. (June 13, 2012). From: http://www.jdsupra.com/post/documentViewer.aspx?fid=dca67d93-c84d-4331-a327-fc394407d125

Sanches, Linda. “2012 HIPAA Privacy and Security Audits.” National Institute of Standards and Technology. (June 7, 2012). From: http://csrc.nist.gov/news_events/hiipaa_june2012/day2/day2-2_lsanches_ocr-audit.pdf

Saul, H. Carol. “Update on OCR HIPAA Audits.” Lexology. (May 29, 2012). From: http://www.lexology.com/library/detail.aspx?g=e5a886a7-1d24-4f90-a1a6-6a367e9fc3ba

About the Author:  George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

Breach of HIPAA Privacy Regulations May be a Basis for Negligence Actions

By Shelby Root and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by the Florida Bar in Health Law

00011_RT8Given the advances in information technology, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) was enacted by Congress as a comprehensive legislative and regulatory scheme to ensure basic protections of patients’ right of privacy regarding their health information. HIPAA, standing alone, does not provide a private right of action. It also preempts contrary state laws. A recent case in the Supreme Court of Connecticut, Byrne v. Avery Center for Obstetrics and Gynecology, P.C., 102 A.3d 32 (Conn. 2014), addressed these issues. The decision answered the question of whether HIPAA preempts state law claims for negligence and negligent infliction of emotional distress against a healthcare provider who released medical records in the course of complying with a subpoena.

The Facts of Byrne v. Avery Center for Obstetrics and Gynecology, P.C.

During May 2004, Byrne started a personal relationship with Andro Mendoza, which lasted four months. At some point during May 2004 and July 12, 2005, the Avery Center provided Byrne with gynecological and obstetrical care and treatment. During the visit she was given the center’s privacy policy regarding protected health information. The policy, and the law, state that a patient’s health information will not be disclosed without their authorization. After Byrne’s relationship with Mendoza ended she instructed the center not to release her medial records to him.

On May 31, 2005, Mendoza filed paternity actions against Byrne. The Avery Center was served with a subpoena requesting its presence, along with Byrne’s medical records, at Probate Court. The center did not alert Byrne of the subpoena, file a motion to quash or appear in court. Instead, it mailed a copy of Byrne’s medical file to the court.

The Supreme Court of Connecticut’s Holding.

The Supreme Court of Connecticut reasoned that the fact a state law that allows an individual to file a civil action to protect their privacy exist does not mean that the law conflicts with the HIPAA penalty provisions. Therefore, the court concluded that HIPAA does not preempt causes of action when they are based on a state common or statutory law due to a healthcare provider’s breach of confidentiality.

The court found that a number of federal and state courts have ruled that a breach of the HIPAA Privacy Rule may be the basis for a breach of a duty of care in state court negligence actions. A patient’s private right of action does not conflict with or complicate healthcare provider’s compliance with HIPAA. In fact, negligence claims in state courts are furthering HIPAA’s goal of deterring wrongful disclosure of patient’s healthcare information. To view a past blog on a HIPAA violation case in California, click here.

Editors’ Comments on Byrne.

This is the latest of several recent cases where state courts have allowed cases to proceed against health care providers who breached the medical confidentiality of their patients, based in part on the HIPAA Privacy Regulations. In this case, the court correctly held that, although HIPAA does not afford a private right of action by itself, it does establish the duty that is owed by a healthcare provider to its patients to protect their medical information. With this duty being established, the plaintiff can then proceed under a straight negligence tort cause of action.

It is also noteworthy that the HIPAA Privacy Regulations are just one source of “evidence” or standards that can be used to establish th duty owed by medical professionals and theories.

This case also helps to put to rest the spurious defense that HIPAA might “preempt” such a cause of action that is brought under state law. We have seen this theory used by defendants just about any time a federal statute or federal regulation might come into play in a tort law suit. The court correctly determined that this defense theory was not valid.

If anything, HIPAA has better defined and strengthened a duty that has been owed to patients by physicians, nurses, health professionals and health facilities since the time of Hippocrates.

Comments?

What are your thoughts on the Supreme Court of Connecticut’s ruling? Please leave any thoughtful comments below.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and instiuttions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Source:

Byrne v. Avery Center for Obstetrics and Gynecology, P.C., 102 A.3d 32 (Conn. 2014). From:

http://scholar.google.com/scholar_case?case=6869878125055474806&q=Byrne+v.+Avery+Center+for+Obstetrics+and+Gynecology,+P.C.,+102+A.3d+32+(Conn.+2014)&hl=en&as_sdt=40006

About the Authors: Shelby Root is a summer associate at The Health Law Firm. She is a student at Barry University College of Law in Orlando. George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Health Insurance Portability and Accountability Act, HIPAA, HIPAA Privacy Rules, HIPAA compliance, protected health information, patient privacy, patient rights, HIPAA violation, penalties for HIPAA violation, civil penalties for HIPAA violation, privacy, defense attorney, defense lawyer, HIPAA defense attorney, HIPAA violation help, HIPAA attorney, HIPAA lawyer, compliance plans, health law, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law firm. All rights reserved.

Preparing for HIPAA Audits

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The Office of Civil Rights (OCR) has recently released the initial results for the first round of HIPAA audits, as well as the HIPAA audit protocol. Covered entities need to review both the audit results and audit protocol to assist in preparing for the possibility of a HIPAA audit.

Tips to Prepare for a HIPAA Audit.

Although the first round of audits has concluded, HIPAA audits will continue to be conducted through December 2012. Covered entities that avoided the first round of HIPAA audits can learn from the results released by OCR. The OCR is also expected to release an audit protocol which will further assist covered entities in learning how to prepare for a HIPAA audit. The following tips should assist covered entities in preparing for and responding to a HIPAA audit.

To see a previous blog post regarding health care audits, click here.

Before the Audit:

  • All policies and procedures required by the HIPAA Privacy, Breach Notice, and Security Rules should be finalized and regulator-ready.
  • Assign individuals in your organization that can speak to each aspect of HIPAA implementation. Be sure they are aware of questions that may be asked by the OCR concerning compliance.
  • HIPAA’s Security Rule requires that covered entities periodically conduct a risk analysis.  The OCR recently released guidance on conducting such an analysis. This risk analysis guidance can be found here. The results of your risk analysis will likely be among the documents requested for review during an audit.  If you have not conducted a risk analysis in the last year, do so now. Evaluate the results and determine how to handle identified risks. Be sure to carefully document each step of the risk analysis process.
  • Train employees on compliance. Maintain documentation that every relevant employee has been trained.
  • Identify all of your vendors that handle protected health information. Negotiate business associate agreements with all such vendors.

During the Audit:

  • Respond to every notice provided by the OCR in a timely manner. All relevant personnel should receive copies of the OCR’s written notice of its intent to audit.
  • Appropriately respond to the draft audit report with any findings that you believe were unfair or inaccurate before the report is finalized. According to the OCR you should have ten days to respond.

After the Audit:

  • When audit is over, enforce compliance measures suggested by the OCR. To avoid further action taken by the OCR.

Contact Health Law Attorneys Experienced in Audits of Health Providers.

The Health Law Firm represents physicians, medical practices, hospitals, and other health providers in audits, including Medicare audits, Medicaid audits, and HIPAA audits. The Health Law Firm also assists health providers in establishing compliance with HIPAA regulations. If you have received notification of an impending audit contact The Health Law Firm immediately.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author:  George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

Remedies for Violation of HIPAA Privacy Rights and Medical Confidentiality – Part 1

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

I receive many questions and e-mails about possible violations of the Health Insurance Portability and Accountability Act’s (HIPAA) Privacy Regulations and Security Regulations, and breaches of confidentiality of medical records and medical information.  I will attempt to explain and clarify this issue a little in this short blog.

More detailed information on HIPAA Privacy Regulations and Security Regulations, can be found at: http://www.hhs.gov/ocr/privacy/hipaa/understanding/index.html

There is no private cause of action allowed to an individual to sue for a violation of the federal HIPAA or any of its regulations.  This means you do not have a right to sue based on a violation of HIPAA by itself.  However, you may have a right to sue based on state law.  See below.

1.  File a HIPAA Privacy Complaint with the Office of Civil Rights (OCR).

As a first step, you may desire to file a HIPAA Privacy Complaint with the federal government.  These are usually required to be filed within 180 days of the event (there are limited exceptions).  They are usually all taken and fully investigated.  If it is an egregious or a repeat violation, it may even result in an investigation by the Federal Bureau of Investigation (FBI) and criminal charges being filed against those responsible.  However, in most cases if there is a valid complaint, the federal government will assess administrative fines against those responsible.  In almost all cases, a report will be made back to you of what is found and what actions have been taken.

If you decide to file a HIPAA Privacy Complaint, this is done with the Office of Civil Rights (OCR) of the U.S. Department of Health and Human Services (DHHS).  You may do this online.  The Complaint form is found at: http://www.hhs.gov/ocr/privacy/hipaa/complaints/index.html

If you follow this process and receive a finding that verifies the violation, you may find it easier to retain an attorney to take your case.  Please note, there is only a very short period of time in which you are allowed to file such a complaint after you have discovered it.  So be sure to do this right away.

2.  File a Complaint Against the Physician Involved with the Florida Department of Health (DOH).

The Florida Department of Health (DOH) licenses all physicians, nurses and health professionals in the state of Florida.  It is also responsible for investigating complaints against them.  The various professional boards (Board of Medicine, Board of Nursing, etc.) are under the DOH.

If there was a violation or breach of patient confidentiality or medical records confidentiality, this may also be a violation of the state’s laws on patient or medical records confidentiality. This is true in most states, not just Florida.

If there was a violation or breach of patient confidentiality by a licensed health care professional, you may also file a complaint with the appropriate state licensing board or agency about this, as well.  In Florida, for example, if a licensed health professional did this, you may decide to report this to the Florida DOH.  If they are licensed in a different state, you may have to follow that state’s procedure for filing a complaint.

For Florida, you may call the Florida DOH at (888) 419-3456 or (850) 245-4339, or you may use the online complaint form found at: http://www.doh.state.fl.us/mqa/enforcement/enforce_csu.html

The Florida DOH will investigate the complaint and will usually have an expert witness review it.  If there is a finding against the physician (or other licensed health professional) you can ask for a copy of the DOH expert’s report.  This may result in your obtaining a free expert witness review of the case.  The expert witness might even agree later to testify as an expert witness if there is a civil lawsuit filed (however, this is something your attorney would have to work out with the expert witness).

3.  File Grievance or Report to Third Party Payer (Medicare, Tricare, VA, Insurance Co.).

If you are a Medicare patient, TRICARE/CHAMPUS patient, Veterans Administration (VA) patient, Public Health Service patient, or military patient, you may also report this to the Office of the Inspector General (OIG) of that specific agency.

If you are a member of a managed care plan or have health insurance, you may desire to file a member grievance or complaint with the insurance company.  Every physician who accepts Medicare is subject to the Medicare Program’s peer review system.  You may file a complaint directly with Medicare and ask for it to be reviewed by the Medicare peer review program.

More on HIPPA Violations to Come.

In a future blog, I will continue to explain and clarify HIPPA violations.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

 

Remedies for Violation of HIPAA Privacy Rights and Medical Confidentiality – Part 2

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

I receive many questions and e-mails about possible violations of the Health Insurance Portability and Accountability Act’s (HIPAA) Privacy Regulations and Security Regulations, and breaches of confidentiality of medical records and medical information. 

More detailed information on HIPAA Privacy Regulations and Security Regulations, can be found at: http://www.hhs.gov/ocr/privacy/hipaa/understanding/index.html

There is no private cause of action allowed to an individual to sue for a violation of the federal HIPAA or any of its regulations.  This means you do not have a right to sue based on a violation of HIPAA by itself.  However, you may have a right to sue based on state law. 

To read the first part of this blog, click here. To continue learning more on HIPAA Privacy Rights and Medical Confidentiality, see below.

4.  State Laws and Law Suits (Civil Recovery).

If there was a violation or breach of patient confidentiality or medical records confidentiality, this may also be a violation of the state’s laws on patient or medical records confidentiality.  In most states this would give you a legal cause of action for invasion of privacy or for negligence.

The biggest problem usually encountered in this type of case and the reason most attorneys will not even consider taking one is the lack of documented  provable damages (again, I emphasize the words “documented” and “provable”).

5.  The Key is Documented, Provable Damages.

Unless you have actual bills and receipts, you don’t have this.  In most cases, unless you can prove that you have suffered actual damages by proof such as:

a.  Doctors’ bills you have paid

b.  Mental health counseling fees you have paid

c.  The purchase of credit protection insurance

d.  The purchase of identification theft insurance

e.  The costs you have paid because your identity was stolen

f.   Lost pay from time off (with the pay stubs, W-2 forms, etc., to prove the amount)

g.  Lost pay from a lost job (with the pay stubs, W-2 forms, etc., to prove the pay lost)

h.  Attorney’s fees paid as a direct result of the breach of privacy (key word being “direct result”)

i.  Other actual out-of-pocket expenses, you may have a difficult time proving a case in a court of law

If you have these keep good, detailed documentation.  Obtain good, legible receipts for everything.

Unless you have these, you will have great difficulty in finding a plaintiff’s attorney to take such a case.  It is doubtful that you would have a provable case, as well.  There are exceptions to every case, however.

If you do feel that you have a valid case with documented damages, we urge you to contact and retain a plaintiff’s attorney to file suit on your behalf as soon as possible.  You have only a short period of time to bring up such a case, after which your rights to do so will be extinguished forever.

We would urge you to consider carrying out actions #1, #2 and #3 in Part 1.  If these organizations do not find in your favor, then it is even less likely that a judge or jury would find in your favor.

The Difference Between Hourly Attorney vs. Contingency Fee Attorney.

Our statements above hold true mainly because most attorneys who would take such a case are plaintiff’s attorneys who take cases for a contingency fee (a percentage of the amount they win).  In such a case, if an attorney spends 100 hours preparing for trial (actually a low number), wins your case, and you only have $500 worth of provable damages (if the contingency fee agreement is for 40%, a fairly standard amount) then that attorney only gets $200, or $2.00 per hour.  I don’t know any attorney who will work for that amount.  (This is a very simplistic illustration to make the point; it does not even take into account the legal costs involved, which the client is usually responsible for paying.)

An attorney who charges by the hour may be more likely to take the case (but he/she may also be hard to find for this type of case), and may require a retainer fee of $5,000 to $15,000 paid up front just to get started.

If you have a civil case for liability, you only have a short, limited time to file it.  You must do so within the applicable time period or you will lose the right to do so forever.

Remember, there is only a short time in which to take any action that may be necessary and if you fail to do so, your rights may be lost forever.

Again, this is not legal advice, just general information.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.Copyright © 1996-2012 The Health Law Firm. All rights reserved.
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