An Office for Civil Rights (OCR) report issued this month reveals some interesting details about data breach activity under HIPAA, as well as some helpful reminders and recommendations for covered entities and business associates. Section 13402(i) of the HITECH Act requires the Secretary of Health and Human Services to submit a report to various Senate and House Committees containing the number and nature of breaches reported to the Secretary, and the actions taken in response to those breaches. The most recent report covers calendar years 2011 and 2012.
After summarizing the breach notification rules, the report confirms that OCR opens compliance reviews to investigate all reported breaches affecting 500 or more individuals, and it may do so even for reported breaches affecting fewer than 500 individuals. The Department reports that as of the date of the report it has entered into seven resolution agreements/corrective action plans totaling more than $8 million in settlements resulting from breach incidents reported to OCR.
The report provides a detailed analysis of breach activity between the years 2009 through 2012, which includes identifying the general causes of the breaches, the types of entities affected by the breaches, and the location of the protected health information (PHI) when breached. It also provides examples of the kinds of steps taken by covered entities and business associates that experienced data breaches to mitigate the potential consequences of the breaches and prevent future breaches:
- Revising policies and procedures;
- Improving physical security by installing new security systems or by relocating equipment or records to a more secure area;
- Training or retraining workforce members who handle PHI;
- Providing free credit monitoring to customers;
- Adopting encryption technologies;
- Imposing sanctions on workforce members who violated policies and procedures;
- Changing passwords;
- Performing a new risk assessment; and
- Revising business associate agreements.
What is perhaps most helpful in this report is the “Lessons Learned” section that describes areas to which covered entities and business associates should pay particular attention in their compliance efforts to help avoid common types of breaches. We’ve summarized these below:
- Risk Assessment. Perform and document a thorough risk assessment and address vulnerabilities identified. Pay particular attention to mobile devices – digital copiers, USB drives, laptop computers, mobile phones – and ePHI transmitted across networks.
- Evaluate Changes In Operations, Office Moves/Renovations and Mergers/Acquisitions. The risk assessment process is not a one-time activity. As the business changes, moves and expands, covered entities and business associates need to evaluate how these changes affected their data privacy and security program.
- Portable Electronic Devices. The risks here are obvious and significant attention needs to be given to the kinds of safeguards that are appropriate, including encryption.
- Proper Disposal. Have a plan for disposing PHI that is no longer needed, including on electronic devices and equipment that store PHI, as well as PHI maintained by vendors.
- Physical Access Controls. Focusing on IT and PHI in electronic format should not be at the exclusion of traditional physical safeguards, such as controls on access to facilities and workstations that maintain PHI, which benefit PHI in all forms.
- Training. This is critical to making sure that employees and other workforce members not only understand the applicable safeguards, but also to create a sense of awareness and a culture of privacy and security within the organization.