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.
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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.