In January 2021, the Health Information Technology for Economic and Clinical Health (HITECH) Act was amended (under Public Law 116-321) to require the Department of Health and Human Services to take any recognized security practices into account when investigating HIPAA Security Rule violations and audits, prior to making determinations about financial penalties, audit results, and other remedies to resolve violations of the Health Insurance Portability and Accountability Act (HIPAA). Under this change, OCR must consider the recognized security practices that were in continuously in place for the previous 12 months.
The change was intended to encourage HIPAA-regulated entities to take steps to improve their security posture and while the rule change does not constitute a complete safe harbor, by implementing recognized security practices, HIPAA-regulated entities will be able to reduce penalty amounts and the length of investigations and audits.
Earlier this year, OCR issued a request for information seeking comment from the public on how they are implementing recognized security practices, and how they anticipate demonstrating that recognized security practices have been in place. The comment period ended this month and OCR is considering all the feedback received.
On Friday, OCR announced that it is in the process of producing a pre-recorded video presentation for HIPAA-covered entities and business associates on recognized security practices. The aim is to educate HIPAA-regulated entities on the categories of recognized security practices and how it is possible to demonstrate that they have been implemented.
Ahead of the publication of the video, OCR has requested questions from HIPAA-regulated entities that it will aim to address in the presentation. Emails must be submitted by email no later than June 17, 2022, to OCRPresents@hhs.gov