By Diane Evans
Publisher, MyHIPAA Guide
For a dentist, social media can be a great way to communication valuable information. Conversely, it could be your worst nightmare if patient privacy is violated.
The challenge is in harnessing the benefits of social media without violating anyone’s privacy. And that is best achieved through a Social Media Policy that encourages the sharing of information while always protecting privacy.
With a Social Media Policy, you as a dentist can set and enforce clear processes for what may be posted and by whom. Here are some suggestions on what to include in your policy:
The objective is to create a culture of vigilance so that privacy protections become instinctive. It’s about a mindset, rather than the mere motions of a regulatory requirement.
What’s at stake is the integrity of your practice. Your patients trust you, and you of course want to uphold that trust.
Once you have a Social Media Policy in place, it’s helpful to have a collective understanding within your practice of how social media infractions commonly happen. Here are the leading culprits:
In situations such as this, a practice can expect to avoid fines if an underlying HIPAA compliance program is in place, and the breach occurred due to a violation of internal policy.
A cautionary note to dentists: Be extra careful with information with high gossip value. For instance: If a local mayor gets a tooth knocked out in a fight, and then shows up at your office, take extra security precautions.
If a complaint leads to a HIPAA audit, expect stiff fines for lack of an underlying HIPAA compliance program, which must include risk assessment, security policy implementation and management of Business Associates.
If you really want to protect the privacy of those you serve, it is important to establish a culture of vigilance within your organization.
Now, if that sounds like blah-blah, think again. The culture of your organization is a real thing. It is a silent, yet potent communicator of the values reflected in your leadership. High ethical behavior at the top sets the expectations for all.
During our January podcast-and-webinar series, we discussed the importance of a Code of Conduct as a starting point for a HIPAA compliance program. Why? Because it's a great vehicle for describing ethical standards that employees are expected to meet. If expectations aren't in writing, how are they to know?
Basic elements of a Code of Conduct set forth principles of:
Importantly, the commitment should go both ways -- with leadership pledging a commitment to a healthy work environment and employees pledging good conduct. (Yes, pledges should be signed!)
Once the basic standards are set, then there is context for the details of HIPAA compliance relating to safety and security.
To learn more about our HIPAA compliance program tailored for dentistry, visit https://www.myhipaaguide.com/3steps/
For our program tailored to residential providers, visit http://hipaa.opra.org/
Just a quick reminder to any dentists who may be thinking about selling their practices. Even when you are no longer in business, you are still responsible for protecting patient information under the Health Insurance Portability and Accountability Act (HIPAA).
A case reported on the website of the American Dental Association earlier this year sheds light on the consequences of what could happen. And yes, expect that somebody will end up paying.
"The careless handling of [patients' protected health information] is never acceptable," U.S. Office of Civil Rights Director Roger Severino said in a news release. "Covered entities and business associates need to be aware that OCR is committed to enforcing HIPAA regardless of whether a covered entity is opening its doors or closing them. HIPAA still applies."
The best protection against breaches and potential consequences: Protect privacy, not just because it's the law, but because it's the right thing to do. Above all, privacy is about upholding the trust of people who have entrusted their care to you.
Our new webinar series gives you the answers on what to do after receiving a complaint about a potential HIPAA breach. Register here for sessions on Nov. 19 at 3 p.m. EST and Nov. 24 at noon EST.
We also have a special offer for webinar participants on a secure ReportaBreach.com webpage, customized for your organization, and complete breach reporting tools, plus a complimentary consult.
Join us on the webinar!
Staff working on the ground sees everything; they are the ones likely to come across a problem that demands your attention. You need to have a reporting system established that the staff knows exists to ensure the issue will be communicated.
First, you must manage reporting systems for your agency. Create a process through which staff can submit reports either anonymously or by name. Have a system in place to ensure that once a potential breach has been communicated you have the tools ready to complete an investigation efficiently.
Remember! Review whistleblower reports regularly! Monitor to make sure investigations take place in a timely manner and are resolved.
Having a reporting system in place is only half the battle. You have to also make sure your staff:
Understands yourorganization's reporting system, and Does not fear retaliation for reporting.
Make the duty to report a part of your agency's culture. Promote awareness and understanding of the availability of whistleblower reporting and other resources your agency offers. Also promote your agency's non-retaliation policies. Make these policies known to staff in new-hire orientation and annual training, on your website, in staff memos and through other ways you communicate with staff.
Keep in mind! Communication is a two-way street. Creating a reporting system is meaningless if staff does not know to use it!
For more information, check out the section on Preventing Breaches on page 26 of the MyHIPAA Guide Compliance Manual. MyHIPAA Guide subscribers may access available templates for security incident reports and incident investigations under Appendix E of the Security Policies and Procedures template on Step 3 of the MyHIPAA Guide website.
At the recent annual conference of the Association of Professional Developmental Disability Administrators (APDDA), we had the pleasure of hearing from administrators from facilities in Corpus Christi and San Antonio, Texas and Miami, Florida who spoke about their experiences preparing for and recovering from Hurricane Harvey and Hurricane Irma last fall. Part of building an emergency preparedness plan includes making provisions to meet the needs of residents with disabilities in the event of an evacuation.
But! Even in an emergency preparedness plan, a resident's health information is still protected by the HIPAA Privacy Rule.
Check it out! The Department of Health and Human Services offers a great interactive tool, The HIPAA Privacy Decision Tool, that through a series of questions helps you determine how the HIPAA Privacy Rule would apply in specific emergency situations (it's available as a flowchart, too!). Other emergency preparedness resources are also available through the HHS site.
At the start of each new year, it is always good to look back at federal settlements under the Health Insurance Portability and Accountability Act (HIPAA). That is how you know matters most to the Feds in terms of privacy enforcement.
From 2017, here is a short list of key messages:
Now let’s take these one by one, with examples illustrating each point.
Understanding HIPAA requirements:
In a case involving CardioNet, a provider of remote mobile monitoring of heart patients, the Feds said that a lack of understanding of HIPAA creates risk. CardioNet paid the cost of such ignorance in a $2.5 million settlement, stemming from a laptop stolen from an employee’s vehicle, and containing private health information. Read the Press Release.
In April, the Feds put out a news alert with the headline, No Business Associate Agreement? $31K Mistake.
It’s was as if to say “Gotcha” -- albeit in a small settlement by HIPAA standards. The case involved a children’s digestive health center. As the Feds were investigating one of the center’s Business Associates, they discovered the absence of a Business Associate agreement, which was the health center’s responsibility to execute. Read the Resolution Agreement and Corrective Action Plan - PDF.
In a case involving unauthorized access to health information, Memorial Healthcare System (MHS) paid the Feds $5.5 million to settle potential violations. Private health information had been impermissibly accessed and disclosed through login credentials of a former employee of an affiliated physician’s office. For a year’s time, the unauthorized access took place on a daily basis -- and without detection due to a failure to monitor of database activity. Read the Resolution Agreement.
A case involving Children’s Medical Center of Dallas (Children’s) stemmed from impermissible disclosure of unsecured, electronic health information and non-compliance with HIPAA standards over many years, according to the Feds. The Feds issued a notice to Children’s, which included instructions for how Children’s could file a request for a hearing. Children’s did not request a hearing. Children’s paid a civil penalty of $3.2 million, and the Feds called out the issue of timely response. Read the Press Release.
This is essential to HIPAA compliance. In a case resulting in a $2.3 million settlement, the Federal Bureau of Investigation (FBI) notified 21st Century Oncology, Inc. (21CO)
on two separate occasions that patient information was illegally obtained by an unauthorized third party. Evidence included 21CO patient files purchased by an FBI informant. Among other things, the Feds determined that 21CO failed to implement procedures to regularly review records of information system activity, such as audit logs, access reports, and security incident tracking reports. Read the News Release.
The vast majority of HIPAA cases are resolved through corrective action plans that the Feds monitor. While that means no fine, you'll still have the Feds hovering over you for a while.
A Business Associate is a person or organization, other than an employee of a covered entity, who performs functions or provides services related to creating, receiving, maintaining, or transmitting Protected Health Information (PHI) on behalf of your organization.
Remember!: With all of your business associates, you need an agreement that legally binds you (the HIPAA covered entity) and the business associate with very clear terms for managing and protecting health information emanating from you.
A written contract with your Business Associate must:
Detail the uses and disclosures of PHI the Business Associate may make
Require that the Business Associate safeguard PHI
In other words, if any one person or vendor has potential access to private health information, you need to hold them accountable to the same high standards as you are held accountable.
By now, you know that international ransomware attackers have hit health systems in the United States. While it’s up to the techs within your organization to apply security measures, it’s everyone’s job to thwart thieves by recognizing and avoiding their traps - often hidden in seemingly harmless emails.
Keep in mind that hackers are smart, and it’s their business to fool even the most conscientious employees in close proximity to patient information. That’s why it’s important to know the warning signs of ransomware.
Let’s start with some basics pertaining to email:
Of course the goal is to avoid the schemes of hackers, who typically “kidnap” information with the promise of releasing it back to its rightful owner in exchange for money. A joint study conducted by several security firms estimates that creators of one form of ransomware -- called CryptoWall 3.0 - have extracted more than $325 million from victims since January 2015.
In the event you fall victim to a ransomware scheme, you should know the tell-tale signs of being hacked so that you can seek help right away. One common scenario is that you click on a link or open an attachment and immediately realize it is suspicious. Get help, even if you’re not 100 percent sure it’s a problem.
Other indicators of a ransomware include:
If you do not need remote access to a database containing patient information, disable the service on your computer. If you do need remote access, use it only as necessary. And make sure your password is next to impossible to figure out. By now you may wonder what the odds are that you may encounter a ransomware threat. Well, a recent U.S. Government interagency report indicates that, on average, there have been 4,000 daily ransomware attacks since early 2016. That’s a 300% increase over the 1,000 daily ransomware attacks reported in 2015!
That is why everyone needs to have an eagle eye out for the crooks.
Here are just a few other things to keep in mind:
Simple safety practices on the part of all can thwart thieves so the can’t do their dirty work. That’s the goal -- and it takes a community of dedicated workers to achieve it.
Note: Information included in this post has been compiled from email alerts distributed by the U.S. Office for Civil Rights (OCR) from May 12 through May 16, in response to interational threats impacting healthcare. Reference material includes: February 2, 2016, and March 30, 2016 cyber awareness updates, and a February 2017 newsletter, all from OCR, and a Ransomware Fact Sheet from the U. S. Department of Health and Human Services.
With the onset of federally mandated enforcement of patient privacy laws, it’s a good time to review lessons from HIPAA cases announced in 2016. Common themes clearly prevail.
In reviewing these lessons, keep in mind that the feds continue to clarify the stricter rules in place since 2013 under the Health Information Portability and Accountability Act (HIPAA). Since federal audits began only last year, gray areas continue to muddle the murky waters.
Here are some overriding messages from recent federal cases and news releases:
Make this a top priority, and include all remote facilities in your assessment. Also account for the security of mobile devices and databases in the homes and cars of employees, including telecommuters. Multiple settlements drive home this point. Also remember that you need proper policies and procedures in place as part of risk analysis and mitigation.
Example: The case of St. Joseph Health (SJH), which operates hospitals, home health agencies, hospice care, outpatient services, skilled nursing facilities, community clinics and physician organizations in California, Texas and New Mexico. SJH agreed to pay $2.14 million in a settlement with the U.S. Office for Civil Rights (OCR), relating to a report that files containing electronic protected health information (ePHI) became publicly accessible through internet search engines from 2011 until 2012. A server SJH purchased included a file sharing application, and the default setting allowed anyone with an internet connection to access the data, potentially breaching the privacy of nearly 32,000 patients.
The feds said: Although SJH hired a number of contractors to assess risks and vulnerabilities, evidence indicated a “patchwork” approach falling short of “enterprise-wide risk analysis.”
Again, multiple cases reinforce this as a big priority. The point is that if any outside person or vendor can potentially access private information about your patients, then you need to hold those vendors or individuals to the same rules that apply to you. You need formal agreements with them. Also know that HIPAA audits extend to business associates.
Example: The Archdiocese of Philadelphia agreed to pay $650,000 to settle potential privacy violations relating to the theft of a mobile device containing protected health information for 412 nursing home residents. In this case, Catholic Health Care Services (CHCS), an agency of the Diocese, performed IT services as a business associate to six skilled nursing facilities. The potential breach happened as a result of a theft of a CHCS-issued employee iPhone, which was unencrypted and not password protected. The information on the iPhone included social security numbers, information about diagnoses, medications and treatments, and names of family members and legal guardians.
The feds said: CHCS had no policies addressing the removal of mobile devices containing patient information from its facility, and no risk analysis or risk management plan.
Click here to read more about what happened.
You’re on hook, too. HIPAA-covered providers of all types and sizes are subject to audits. Last fall, OCR announced it is now working with its regional offices to “more widely investigate the root causes of breaches affecting fewer than 500 individuals.” The regional offices will still have discretion on which smaller breaches to investigate, but each office will increase its efforts to address these smaller breaches.
In a recent newsletter, OCR discussed the “insider threat” as one of the largest threats to the security of patient information within organizations. The agency noted that even some cyberattacks may be insider-driven.
According to a recent survey, conducted by Accenture and HfS Research, 69% of organizations surveyed reported experiences with malicious activity on the part of insiders, including current or former employees, contractors and business associates.
Keep in mind, whenever patient information reaches unauthorized ears and eyes, nothing stops it from getting on social media. And yes, that does happen, especially among patients who are most vulnerable and unsuspecting.
Click here for more about how to guard against insider threats, and recommendations for preventing abuses.
The feds have released a new fact sheet that explains how HIPAA Rules permit disclosures of Protected Health Information (PHI) to support public health activities conducted by public health agencies, as authorized by state or federal law. The facc sheet offers examples of instances where the sharing PHI supports public health policies.
You may find the new fact sheet on the federal government's website at: https://www.healthit.gov/
Thank you to all who attended the HIPAA compliance session last week in Columbus at the fall conference of the Ohio Provider Resource Association (OPRA). For the benefit of those who requested a copy for our Compliance Charter Template, the attachment is below in a Word document. The presentation is attached as well. Diane Evans, Publisher, MyHIPAA Guide
If you haven't already, read the CMS memo to state survey agencies, ordering a crackdown on social media abuses. Policies aren't enough, the memo says. You also need ongoing, sustainable compliance plans.
By Diane Evans
Publisher, MyHIPAA Guide
If we “fact check” presidential candidates, why not also fact check Medicare? After all, Medicare’s newly announced physician-reimbursement plan will affect the health care coverage of more than 55 million Americans and will determine the kind of treatments that Medicare beneficiaries receive.
If you are enrolled in Medicare, this new paradigm means your particular treatment may be determined by statistics, presumably showing what has worked best for others like you. Of course, the success of such a data-driven approach depends on the quality of the data.
So, the very first question is: In moving away from fee-for-service payments to doctors in favor of so-called “value-based care,” will Americans benefit as Medicare promises? Let’s start fact checking!
In an open letter accompanying last week’s announcement, acting Medicare chief Andy Slavitt describes the government’s new approach as a “more modern, patient-centered program. . . promoting quality patient care while controlling escalating costs.’’ He further notes that by healthcare providers working cooperatively with Medicare, “we can all make real progress in improving the delivery of care in our country.”
In fact: The new system will award higher pay to doctors who base their medical decisions on “best practices” determined by statistics. However, health IT experts—including some in the federal government—warn that the technology simply isn’t available yet to do the high-quality data analysis necessary to standardize patient treatment plans. By the government’s own estimate in a report titled “Capturing High-Quality Electronic Health Records (EHR) Data to Support Performance Improvement,” the nation won’t have the advanced technology for such comprehensive data analysis until 2024.
In an Executive Summary explaining the new system, Medicare says that doctors can qualify for higher pay based in part on dispensing patient care according to models developed private insurers or Medicaid programs. This is presented as a means of achieving higher quality care.
In fact: In a 2011 study, McKinsey & Company refers to transparency as a key precondition to improved healthcare delivery. Yet commercial entities (such as big insurers) don’t readily reveal data for the sake of transparent analysis of best health care treatments. Says McKinsey: “Even in the United States, where health care data is abundant, political and commercial considerations have hindered attempts to use public reporting to drive outcome improvements.”
In addition, the government’s own report, “Capturing High Quality” (referenced above), points to the risks of deciding care based on unsubstantiated data. In one example, the report points to a federally funded project in Rhode Island that set out to improve the health of diabetes patients. However, researchers discovered data quality issues due to missing or inaccessible data or wide, inexplicable variations in outcomes.
The Capturing High Quality report concludes that “as the industry moves toward value-based reimbursement — reimbursement based on quality and cost measures — improving the quality of the data used for measurement is imperative.”
In his letter, Andy Slavitt explains plans for an information superhighway in healthcare, saying the focus is on “measures that support hospitals and physicians safely and securely exchanging information.”
In fact: Earlier this month, the federal agency responsible for healthcare technology hosted a webinar to address what the agency called the “important safety topic” of EHR usability. The webinar featured Dr. Andrew Gettinger, Executive Director of the federal Office of Clinical Quality and Safety, and leaders of the Pew Charitable Trusts, which has studied EHR usability. The issues covered in the webinar are summed up on Pew’s website and include this warning:
“Although the United States has invested tens of billions of dollars to encourage providers to adopt electronic health records, many clinicians have found that these systems have poor ‘usability.’ EHRs can put patients at risk of medical error, do little to enhance clinical care, and increase the time clinicians spend documenting patient care. Indeed, one study found that 15 percent of physicians reported that their EHR had caused a potential medication error within the past month.”
Other evidence supports Pew’s findings. Examples include:
In the case of Medicare, the point of this exercise goes beyond half-truths and pertinent omissions. The issue here is one of medical ethics. If America lacks the technology for standardized patient care based on statistical analysis, then premature demands to move in this direction put the very health of Americans at unnecessary risk. Like the project in Rhode Island, the statistics used to determine patient treatments may be flawed. And yet doctors stand to make more money by playing along – dispensing care according to statistical outcomes that may or may not be valid. All the while, those physicians who buck the system face financial penalties.
In his letter last week, Andy Slavitt extols Medicare for “becoming more open, transparent and responsive (and) committed to paying close attention to the impact of our policies on care delivery.”
Really? Mr. Slavitt, please look Americans in the eye and explain.