The Indiana Attorney General Office (OAG) filed a detailed complaint on December 23, 2024 (Complaint) which arose out of the following patient complaint:

The OAG received a consumer complaint stating that the consumer had contacted Arlington Westend Dental on multiple occasions to receive copies of their x-rays, but Arlington Westend Dental stated it no longer had the x-rays because someone “hacked” their systems.

Under both federal and state law, patients generally have rights to their medical records. In fact, over the last several years, the federal Office for Civil Rights (OCR), which enforces the HIPAA Privacy and Security Rules, has vigorously enforced these rights. In October 2024, the agency announced its 50^th enforcement action, touting a $70,000 settlement, coincidentally with another dental practice.

It should be no surprise that the patient sought redress from the OAG, particularly after being told the reason for the lack of records was a “hacking” to the dental practice’s systems. At that point, according to Complaint, the patient had not received notice of the incident. However, the facts that follow in the Complaint may be surprising for some.

According to the Complaint:

• A ransomware attack occurred in October 2020. Because no forensic investigation was performed, scope of the incident could not be determined.
• The ransomware attack was not reported to the OAG when required by law. It was discovered during the investigation. When it was ultimately reported, the report indicated that the incident was not an intrusion, “but an incident of data being lost when the on-site internal hard drive of the server got formatted by mistake.”
• The OAG obtained recordings of customer service calls from the dental practices software vendor that told a different story about the incident, confirming facts consistent with a ransomware attack, encryption of all records on the impacted server, and the existence of a ransom note.

The OAG’s findings about the ransomware incident prompted further investigation into the practice’s compliance with HIPAA generally. According to the Complaint, the practice had one set of HIPAA policies located at one of its six locations, with no evidence of implementation. No risk assessment had been conducted. In addition to a lack of evidence of regulatory compliance with policy and procedure obligations under HIPAA, the OAG also learned that the practice “repeatedly disclosed PHI in public replies to online patient reviews and made public posts disclosing PHI and identifying individuals, including minor children, as patients of [the practice] without patient authorization.”

The OAG included in the Complaint examples of the photographs of patients made public by the practice and some of the responses to online reviews. Here is one of those responses:

Ms. [redacted] I am sorry to hear that you are upset with the treatment that your husband received at our office. We strive for nothing but the best care for our patients. And let me assure you that your husband got very good dental care. Your husband came in as an emergency because of pain and infection and wanted to have the tooth extracted. We took time out of our busy schedule to take care of him and provide the same-day treatment, for which most people are grateful. He was already in so much pain as you stated when he came in, which means he already had severe infection. We treated the infection by extracting the tooth which was the source of the infection. The doctor also prescribed antibiotics and pain medication. I don’t understand why you would say that we did not take the whole tooth out. We have a post-op X-ray that shows the entire tooth has been extracted. Perhaps you should seek professional opinion of another dentist rather than giving us an unfair review based upon your vague and uninformed assumptions.

Clearly, a lot went wrong here, and there are some serious allegations by the OAG about how this incident and the investigation were handled by the practice. But there are some recurring lessons for providers, particularly smaller and midsized practices, that include:

• Having a set of HIPAA policies in a draw that no one in the practice sees will do little to support an argument for HIPAA compliance.
• Complaints about timely and adequate responses to requests for patient records will get the attention of federal and state agencies, and if true likely lead to penalties.
• While they can be upsetting and possibly disruptive to the practice, responding to patient reviews online and in social media can be serious traps for the unwary. We have seen it play out badly for providers here, here, and here.

We have helped many small to midsized providers, including dental practices, work through the issues and avoid these kinds of settlements and enforcement actions.