The recent ransomware attacks and healthcare IT security incidents have driven the Department of Health and Human Services’ Office for Civil Rights to release a reminder to covered entities about HIPAA Rules on security breaches.
In its May 2017 Cyber Newsletter, OCR outlines what constitutes a HIPAA security incident, how to prepare for such an incident and how to react when perimeters are breached.
HIPAA requires all covered entities to put in place technical controls to safeguard the confidentiality, integrity and availability of electronic protected health information (ePHI). Despite this, even when covered entities have sophisticated, layered cybersecurity defenses and are fully in compliance with HIPAA Security Rule requirements, cyber-incidents may still unpreventable. Cybersecurity defenses are extremely unlikely to be 100% effective, 100% of the time.
Before to the publication of OCR guidance on ransomware attacks in 2016, there was some confusion about what defined a security incident and reportable HIPAA breach. Many healthcare organizations had suffered ransomware attacks, yet did not report those incidents to OCR or advise patients that their ePHI may have been accessed.
OCR has reminded covered entities in its recent newsletter of the HIPAA definition of a reportable security incident. The HIPAA Security Rule (45 CFR 164.304) refers to a security incident as “an attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system.”
OCR has taken the chance to remind covered entities that they need to ready themselves for those incidents. Policies and procedures should be developed that spring into action straight after the discovery of a security incident or data breach.
If covered bodies react quickly to security incidents and data breaches it is possible to lessen the impact and reduce legal liability and operational and reputational damage. Contingency plans should exist for a variety of security incidents and emergency situations. OCR advises “policies, procedures, and plans should provide a roadmap for implementing the entity’s incident response capabilities.”
When a breach happens, the HIPAA Breach Notification Rule requirements must be adhered to. The HIPAA Breach Notification Rule (45 CFR 164.402) requires OCR to be advised of a breach and notifications to be issued to patients in the event of “an impermissible acquisition, access, use, or disclosure under the HIPAA Privacy Rule that compromises the security or privacy of the protected health information.”
Every month, Databreaches.net follows healthcare data breach incidents, with the Protenus Breach Barometer report detailing the time taken for covered entities to report their breaches to OCR. Some recent reports show some improvement, with covered entities reporting their breaches more promptly. However, there have been several cases where data breach notifications have been made known to the OCR late and patients have had their notification letters delayed.
The OCR has reminded covered bodies that the HIPAA deadline for reporting security incidents and sending notifications to patients/health plan members is within 60 days* from the identification of the breach.
This is a strict deadline, not a recommended guideline. Many covered bodies delay issuing notifications until day 59. OCR emphasizes that the HIPAA Breach Notification Rule requires notifications to be filed “without reasonable delay.”
If you missed the email newsletter referred to in this post, you can download a copy on this link: https://www.hhs.gov/sites/default/files/may-2017-ocr-cyber-newsletter.pdf