I recently had the pleasure of speaking to a great group at the Connecticut Assisted Living Association (CALA) about HIPAA and a range of related practical issues. Many covered entities and business associates, particularly those that are small businesses, continue to work on understanding the privacy and security standards, and how to best apply them in their businesses and with their varied workforces. Compliance can be challenging, but it is important to get started and document the compliance steps taken. Here are some reminders about HIPAA privacy and security compliance:

  • Risk assessment. This is a critical step required under the security regulations. Many covered entities and business associates focus first on written policies and procedures to safeguard protected health information (PHI). But those policies and procedures need to address the risks and vulnerabilities to PHI, which can only be determined through an appropriate risk assessment. Of course, organizations need to continually assess their risks and vulnerabilities as their businesses change and grow.
  • Business Associate Agreements. The Health Information Technology for Economic and Clinical Health (HITECH) Act made a number of changes affecting “business associates.” Among those changes were updates to the “business associate agreements” that the HIPAA Rules require covered entities to maintain with their business associates, which could include claims administrators, consultants, cloud and other data storage providers. The final HIPAA regulations established a transition rule that permitted covered entities and business associates to continue to operate under certain existing business associate agreements for up to one year beyond the compliance date of the final regulations (September 23, 2013). That transition period ends this month. Accordingly, it is critical that business associate agreements be updated.A starting point for business associate agreement compliance is the set of sample provisions posted by the Office of Civil Rights. However, there are other issues that parties to the business associate agreement will want to address, such as, data breach coordination and response, indemnity, and agency status. Additionally, a number of state laws (e.g., California, Massachusetts, Maryland) require businesses to have contracts with third-party service providers to safeguard personal information, which likely will include information in addition to protected health information under HIPAA.
  • Data Breach Preparedness. Data breaches continue to happen across the country, exposing vast amounts of sensitive data. HIPAA regulations and laws in 47  states require a number of steps to be taken when a breach happens including notifying the affected individuals and certain governmental agencies. Absent a plan for responding, companies often find themselves ill-prepared to respond timely, correctly and completely. Responding timely is particularly important for avoiding an inquiry from a federal or state agency concerning a data breach. Having a plan and practicing that plan can significantly enhance a company’s ability to respond and minimize its exposure following a breach.
  • OCR AuditsIt is expected that the Office for Civil Rights, which enforces the HIPAA privacy and security rules, will be resuming its audit program this fall – which applies to both covered entities and business associates. There are many steps covered entities and business associates can take to be audit ready. Good documentation is one of the most important. OCR wants to be able to see that the organization has taken steps to address the standards under the privacy and security rules. A documented risk assessment, written policies and procedures, and sign-off sheets showing workforce members went through HIPAA training are all examples of documentation an OCR investigator would be expecting to find as part of the audit.

Being “compliant” is no small task, especially as each business has its own particular needs, risks, vulnerabilities, environments, and circumstances that have to be considered. Compliance for an assisted living facility, for example, might look a bit different than it does for a large metropolitan hospital, but many of the fundamental principles are the same.  The key is to get started, understand the risks to PHI, address those risks in a manner appropriate to the organization (one hundred and fifty pages of policies and procedures is not appropriate for many organizations) and under each of the required standards, implement appropriate policies and procedures, and document.

Email this postTweet this postLike this postShare this post on LinkedIn
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.