A Patient’s Right of Access is still an issue for many Covered Entities

By Suze Shaffer

February 15, 2020

Many covered entities struggle to understand what is “right of access” for individuals. Under HIPAA and the Omnibus Rule, a patient has the “right” to request a copy of their medical record in the format of their choice (if available). What this means is, a medical provider is not required to purchase special equipment or software to meet these requests. With that said, if a patient requests a CD or DVD of their medical records and you do not have a DVD drive, you would not necessarily be required to purchase one. Keep in mind, DVD drives are only about $25 and it would not be unreasonable for a practice to purchase one. Of course, the ideal situation would be to direct the patient to your EHR portal and download it themselves. However, you can’t require them to do so.

When a patient requests the right to access their PHI (protected health information), be sure to have the patient sign a written request and make note of the date. A provider has 30 days to supply the patient with this information. To extend the time, the covered entity must, within the initial 30 days, inform the individual in writing of the reasons for the delay and the date by which the covered entity will provide access. Keep in mind, only one extension is permitted per access request.

The next area of confusion is the fee limitation. Copying fees for medical records are set by individual states and typically refer to the cost of labor, printing, and delivery of paper or electronic data. The labor fee does not permit the provider to charge for the preparation of the data but labor costs could include skilled technical staff time spent to create and copy the electronic file, such as compiling, extracting, scanning and burning [PHI] to media.

The Flat Fee rate option is not cap, merely an option rather than calculating the actual cost of labor and printing. Many providers are utilizing this method since it is easier than calculating the actual costs.

On January 23, 2020, a federal court vacated the “third-party directive” within the individual right of access “insofar as it expands the HITECH Act’s third-party directive beyond requests for a copy of an electronic health record with respect to PHI (protected health information) in an electronic format.” Additionally, the fee limitation set forth at 45 C.F.R. § 164.524(c)(4) will apply only to a patient’s request for access to their own records, and does not apply to a patient’s request to transmit records to a third party.

https://www.hhs.gov/hipaa/court-order-right-of-access/index.html

If you would like to read the Memorandum Opinion from the United States  District Court in the case  Ciox Health LLC vs Alex Azar:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv0040-51

We hope this will help clear up any misconceptions when it comes to a patient’s right to access their medical information.

If you would like more information, contact us at 877.659.2467 or complete the contact us form.

“Simplifying HIPAA through Partnership, Education, and Support”

Heavy fines demonstrate the importance of a network security audit…

data locked

When we discuss IT security, we generally think of a company that maintains our computer network. That is partially true, but that is just the beginning. There is a difference between maintaining your network and securing it. There are a lot of companies that are eager to maintain your network because you pay them a monthly fee to do so. Maintaining a network is making sure updates are done, anti-virus / anti-malware are current, upgrading any technology that is outdated or about to be unsupported. A network security company tests to see if there are any open vulnerabilities that could affect or infect your network. There is a huge difference between the two.
For example, a misconfigured settings of a Windows operating system permitted access to files containing PHI without requiring a username or password. Then two years later a second breach occurred when a server was misconfigured following an IT’s response to troubleshooting an issue, this time it exposed patient information over the internet. These two breaches cost Cottage Health a $3M fine. The Office for Civil Rights (OCR) investigation found that they had not conducted an accurate and thorough assessment and failed to implement security measures sufficient to reduce risks and vulnerabilities to a reasonable and appropriate level based on the size of their organization. Even though they had an IT company maintaining their ePHI system, they failed to obtain a signed business associate agreement.
https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/cottage/index.html
Another breach that happened in 2014 has just been settled by the OCR. Touchstone Medical Imaging has been ordered to also pay $3M. The OCR and the FBI informed Touchstone in 2014 that one it’s FTP servers allowed uncontrolled access to ePHI. The uncontrolled access permitted search engines to index the patients personal information, which remained visible after the server was taken offline.
https://www.hhs.gov/about/news/2019/05/06/tennessee-diagnostic-medical-imaging-services-company-pays-3000000-settle-breach.html
The lesson here is, what you do today can affect your business in the years to come. Make sure you are doing what is reasonable and appropriate to safeguard your patient information. One more keep point, these are just the federal fines. All 50 states now have their own set of privacy laws to protect personal identifiable information that doesn’t have anything to do with health information. Since we work in healthcare, we must adhere to state and federal privacy laws. No longer can you ignore the elephant (HIPAA) in the room, HIPAA is here to stay and you need to choose wisely who you work with to secure your data.

If you haven’t conducted an audit this year, now is a good time to schedule one to ensure your data is secure. If you would like more information on network security audits, contact us at 877.659.2467 or complete the contact us form.

Do you have all of your HIPAA training documented?

 

What do you know about HIPAA enforcement?HIPAA Doctor EKG
Just imagine you were investigated by CMS or the OCR, what would they find?
How confident are you in your medical and/or HIPAA documentation?
Do you have the appropriate documentation to protect your organization?

The Office for Civil Rights (OCR) is very serious about ensuring your organization is educating employees on patient rights and securing PHI. During a recent investigation in Florida an organization was fined $100K for each year they could not produce documented HIPAA training. The first year they only had 3 employees! They were fined for five years, $500K. Once you are under investigation, they review ALL of your documentation, not just what they originally requested. You do not want to end up being in the willful and wanton neglect category. This is where the big fines are calculated.

If you have a patient complaint or suffer a data breach, the best advice is to document, document, AND document! OH, did I mention… DOCUMENT? Next, cooperation. If they ask for something, give it to them. Nothing more, nothing less, but give them what they ask for. Show the OCR you are trying to do the right thing. After all, how would you like it if the information that was compromised was yours? Wouldn’t you want the organization to do what they could to stop the breach or prevent another one from happening?

Remember the MD Anderson in Texas fines? They had multiple devices lost containing unencrypted ePHI. They claimed that they were not obligated to encrypt its devices, and stated that the ePHI that was involved was for “research,” and thus was not subject to the HIPAA non-disclosure requirements. They challenged the OCR and the Judge ruled in favor of the OCR and MD anderson was ordered to pay $4,348,000 in civil money penalties. The quote from OCR Director Roger Severino: “OCR is serious about protecting health information privacy and will pursue litigation, if necessary, to hold entities responsible for HIPAA violations”.

At the NIST/OCR conference in Washington DC, the director along with other members of the OCR staff reminded organizations about enforcement. This is NOT going away. Patient information is extremely valuable to criminals. The days of just a slap on the wrist because you didn’t conduct risk assessment, conduct HIPAA training, or you can’t prove your HIPAA compliance is over. Every organization that has anything to do with patient information must get on board and understand HIPAA. There is NO certificate to prove you are HIPAA compliant, the proof is in your documentation. So I ask one more time… How well do you trust your HIPAA documentation?

 

Cost of cyber attacks on healthcare are steadily rising

 

By Aris Medical Solutions

HIPAA medical hacker

Why are so many medical offices being attacked? Simple, this is a one stop shop for everything needed for identity theft and many medical practices do not have appropriate safeguards in place. Business associates have even been the target or the entry point. HIPAA requires certain security safeguards to be in place to ensure the safety and security of Protected Health Information (PHI).

There have been 188 data breaches of 500 or more patient records in the first 6 months of this year, and in April alone there were 42. Thirteen of the 188 have already been resolved. https://ocrportal.hhs.gov/ocr/breach/breach_report.jsf
These breaches include small medical practices, business associates, and hospitals. Small and large. Paper and electronic. No one is immune. Many organizations think they are too small to get hit, but the fact is the most common problem is untrained staff that unknowingly cause this to happen. Education is the key to avoiding this catastrophe from destroying your reputation. Of course you still need to certain technical safeguards in place, but even then it only takes one click of a mouse to bring your network down.

Here are some areas to consider:

  1. How would you process a data breach?
  2. How would you handle the reputation management of the breach?
  3. How would you pay for the cost of breach and the investigations?

Having a breach notification plan in place before a breach occurs is critical to reducing the damage. You must have processing in place to shut the system down, continue manually, and report to the appropriate authorities.

Consider the lack of trust from your patients since their information was compromised from your office. No matter if it was your fault or that of a business associate this could have a negative impact on your patient database.

Breaches are costly on many fronts, the first being the cost of the notification of the patients, investigations, downtime, and the mitigation of the source of the breach. In 2013 the Ponemon Institute reported that a data breach cost $233 per medical record, now in the 2018 the report states a healthcare breach can cost on average $408 per medical record.
https://www.ibm.com/security/data-breach

Keep in mind if you do not know which records were breached then everyone must be included in the notification process. What could turn out to be the most costly is the fines and penalties associated with the breach. Depending on how and when you processed the breach is one determining factor. Also once the investigation is complete, if it is discovered this was an ongoing problem and was not mitigated, then you could be found in willful and wanton neglect. This is NOT a place you want to find yourself! The Office for Civil Rights (OCR) can also fine you for not conducting a thorough enough risk analysis thus leaving vulnerabilities untouched. How well do you trust your efforts in securing your data? Have you conducted a risk assessment to determine if what you have in place is sufficient?

How can Aris help?

  • First of all we conduct a thorough risk analysis that uncovers vulnerabilities and create a risk management plan so that you can mitigate those risks.
  • Since written documentation is also part of HIPAA compliance, we provide the necessary privacy and security policies, procedures, and documentation needed for state and federal regulatory requirements.
  • We also offer HIPAA training that includes privacy and security and any custom requests.
  • If you are one of the many organizations that simply do not have the time to implement your HIPAA program, we can do that for you as well. Month to month, no long term contracts!

If you would like a free HIPAA checkup call 877.659.2467 or complete the contact us form.

“Simplifying HIPAA  through Partnership, Education, and Support”

Workstation Security

 

By Aris Medical Solutions

HIPAA keyboard chain with lock

HIPAA Compliance is more than just about a patient’s right to access their information. Although the HIPAA Privacy Rule is how most of this began, it is so much more now! The HIPAA Security Rule outlines administrative safeguards, physical, and technical security. Most organizations are so busy trying to figure out how to protect themselves from the unknown (technical concerns) that they forget about the actual physical security. We are not just talking about building security systems, but how you secure the individual devices that are utilized within your facility and those who travel with portable devices.

Here are some helpful ideas to review with your particular situation:

  1. Although utilizing a security system that has motion sensors is better than nothing, using security cameras usually discourages theft.
  2. Conduct a walk through of your facility and create an inventory list of all devices that access or store ePHI. Knowing what you have, where it is located, and if it contains ePHI is essential in securing your data. This includes portable devices and small electronic media. Remember, printers, copiers, and scanners can store data as well.
  3. Review the location of all devices that access or store ePHI. Ensure they are not located in an area that could be easily accessed by an unauthorized person or utilize cable locks. If screens are viewable and cannot be relocated, the use of privacy screens are highly recommended. Encryption is recommended on any device that contains ePHI. If the devices are transported they should be encrypted even if they do not contain ePHI. If they are ever lost or stolen and the encryption is engaged, it would not be a reportable breach.
  4. If your USB drives are not used, locks should be installed. This is an inexpensive method to protect the network. If your workstations utilize CD/DVD drives, these should be disabled as well. Another option would be to configure this through a Microsoft Group Policy.
  5. Make sure paper PHI is not left in areas that could be accessed by another as well. This includes where you store your excess paper charts. These areas should be locked when not in use. It is also recommended to utilize signage instructing “Employees Only”.
  6. Employees can be your biggest asset or your largest liability. Training your employees on computer security is an ongoing process. Annual HIPAA training should include the HIPAA privacy rule and HIPAA security rule. Also, add monthly security reminders to keep HIPAA fresh in their minds. Continuing education is the key to safety.
  7. HIPAA Policies and procedures are the backbone of an organization. Properly trained employees know and understand what is required and needed. The data that a health care provider has in its possession is priceless. This data must be secure physically and technically. All of this is necessary to avoid a data breach.

If an organization fails to secure patient information the Office for Civil Rights (OCR) will open an investigation and the organization can end up with massive fines. These fines have ranged from $250K to $3.5M. Although the fines are based on the organization’s ability to pay, the days of receiving just a $50K fine seems to be over. Best practices would be to review your HIPAA risk analysis and make sure it is thorough. Some online risk assessments unfortunately do not uncover all of your vulnerabilities. The OCR could consider this as willful neglect even though you didn’t know. Make sure you update your risk management plan and mitigate those vulnerabilities. Small oversights could cost you a fortune.

For more information on how Aris Medical Solutions can help your organization with HIPAA Compliance and Protecting your Data call 877.659.2467.

“Simplifying HIPAA through Partnership, Education, and Support”

October is National Cyber Security Month

 

By Aris Medical Solutions

magnifying glass laptop scam

This annual campaign is to raise awareness about cyber security. We live in a world that is more connected than ever before. The Internet touches almost all aspects of everyone’s daily life, whether we realize it or not. National Cyber Security Awareness Month (NCSAM) is designed to engage and educate public and private sector partners through events and initiatives to raise awareness about cyber security, provide them with tools and resources needed to stay safe online, and increase the resiliency of the Nation in the event of a cyber incident.

https://www.dhs.gov/national-cyber-security-awareness-month

Did you know… that 2 out of 3 people have experienced a tech scam within the last 12 months?

Did you know… nearly 1 in 10 people have paid money to a scam?

Do not let anyone you do not know gain access to your computer… Scammers call people and either offer them a free scan or tell them there is a new virus out and they are probably infected. These scammers almost always have the sense of urgency and try to pressure you to “Do-it-Now”.
Don’t do it! Most of us are the ones that allow the scammers in. Either by answering the phone or clicking on a link in an email. Social engineering is at an all time high and WE are the ones that are giving OUR money away!

Add security to your login… passwords are the most common authentication tools used today, and they are the easier to hack. Always use a two-step authentication process whenever it is offered. There are many solutions available. Biometrics, security keys, and one time use codes that are text to your cell phone.

Did you know… you can pick up malware by merely visiting a website? Covered Entities and Business Associates have to be especially diligent in keeping their network systems clean and protect patient data. HIPAA Compliance begins with solid HIPAA Policies and Procedures but it also includes Technical Safeguards that are needed.
Here are some suggestions to help keep your network clean and safe:

  • Limit administrative privileges to those who really need it and only sign in as the administrator when needed
  • Limit users to specific work hours and block after hours usage if possible
  • Perform a network security audit at a minimum annually
  • Perform routine physical inventory and ensure unauthorized devices are not connected to your network or computers
  • Keep anti-virus and anti-malware software up to date
  • Web surfing should not be permitted with any device that accesses or stores Protected Health Information (PHI)
  • Change default passwords on all technology devices

This excerpt was taken from the Office for Civil Rights (OCR):

Did you know that your file transfer protocols may be particularly vulnerable to cyber-attacks?
FTP (file transfer protocol) is a standard network protocol used to transfer computer files on a computer network. A type of data storage device, called a network-attached storage (NAS) device, started becoming victim to a serious type of malware which exploited the FTP service available on FTP servers, including FTP services available on NAS devices, beginning this year. NAS devices connect to a computer network and provide a way to access data for a group of persons or entities.

According to a recent report by Softpedia, Sophos, a computer security firm, gathered telemetry data that indicated 70 percent of a certain vendor’s NAS devices connected to the internet were infected with a malware variant called Mal/Miner-C (also known as PhotMiner). Sophos researchers claim that out of 7,000 of these NAS devices connected to the internet, 5,000 were infected with this malware by cybercriminals who also collected $86,000, in cryptocurrency like bitcoin and monero, from cryptocurrency mining related to this attack.

Allegedly, the malware variant appeared in the beginning of June 2016. A report revealed that the malware was targeting FTP services, such as those available on NAS devices, and spreading to new machines by attempting to conduct brute-force attacks using a list of default credentials. Also, the researchers claim that a design flaw regarding the use of public folders on certain NAS devices permitted the Miner-C malware to more easily copy itself to the public folders.

The Mine-C or PhotoMiner (the malware) tricks users by copying files to the public folders that resemble a standard Microsoft folder icon. Once the user clicks on the folder, s/he activates the malware variant, and it installs the malware on the victim’s laptop, desktop, or other computing device. The malware allows cybercriminals to generate cryptocurrency (i.e., bitcoins, monero) by “mining”. Cryptocurrency mining exploits computer processing power to solve difficult math problems. Essentially, attackers are rewarded with cryptocurrency for the amount of math problems they solve.

This type of malware can affect an information system’s performance by eating up a system’s computing power, and slowing down other system processes.
For more information on how Aris Medical Solutions can help your organization call 877.659.2467 or click here to contact us.

“Protecting Organizations through Partnership, Education, and Support”

OCR clarifies amount that can be charged for copies of PHI

 

By Aris Medical Solutions

 

The Office for Civil Rights (OCR) announced the clarification in the Fact Sheet they released earlier this year. The maximum amount that can be charged for patients that request a copy of their Protected Health Information (PHI) under the right of access is not $6.50. Rather, charging a flat fee not to exceed $6.50 is an option available to those entities that do not want to go through the process of calculating the actual or average costs for requests for electronic copies of PHI maintained electronically. Entities may choose the fee calculation method that is most appropriate for their circumstances, of course within the boundaries of what is permissible under the Privacy Rule.

The new FAQ may be found at: New Clarification – Up to $6.50 Flat Rate Option. Additional information regarding permissible fees and other aspects of the individual right of access may be found at: http://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html
Contact Aris Medical Solutions at 877.659.2467 or click here to find out how we can protect your organization.

“Protecting Organizations through Partnership, Education, and Support”

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