A breach of PHI is the last thing a privacy or security officer wants but, large or small, breaches can happen. The best-laid defenses can be undermined by simple human error or a cyber-criminal hacking on the cutting edge of technology. When that happens, you need a security incident response plan.
Disaster plan
A formal security incident response plan should be developed and maintained similar to a data center disaster response plan, Kate Borten, CISSP, CISM, HCISPP, founder of The Marblehead Group, Marblehead, Massachusetts, says. IT departments should be accustomed to disaster recovery plans that guide the department's response to any disaster (e.g., fire, flood, earthquake) that affects computer systems. Security incident response plans can be seen as comparable and equally important.
When a breach is identified, the first step should be to stop the bleeding. Take steps to prevent a recurrence or limit the damage. This could be especially important for security breaches that involve hacking or PHI that was accidentally made accessible to the public on a website or cloud service. In such a situation, it would be prudent to shut down affected websites, portals, or remove access to data repositories, according to Frank Ruelas, MBA, principal of HIPAA College in Casa Grande, Arizona.
Follow a plan from the start to ensure that risks are mitigated quickly. The plan should include appropriate steps to take depending on the type of security incident, who should be part of the incident response team, and how information about the breach should be communicated within the organization, according to Chris Apgar, CISSP, president of Apgar and Associates in Portland, Oregon. Having a detailed plan that lists members of the incident response team means more time can be spent addressing the breach than asking questions about who should be involved.
A security incident response plan will also help an organization determine what level of action it needs to take. "There will be some incidents, including breaches, where it's not necessary to pull together the whole team and go through every step in the plan," Apgar says. "For example, if a patient notifies you that she received another patient's EOB [explanation of benefits], it may not be necessary to call everyone together."
In that example, Apgar says, because the organization already knows who was impacted by the breach, the response is simply a matter of following the breach notification steps set by HIPAA and any applicable state laws.
Creating and conducting an organizationwide risk analysis: Part 1
Editor's note: This is part one of a series about implementing organizationwide risk analyses. Look for part two in an upcoming issue of BOH.
OCR's breach settlements, corrective action plans (CAP), and penalties often take organizations to task for not completing a regular organizationwide risk analysis, yet it's all too easy for this important job to fall by the wayside. A lack of resources and competing demands within an organization can push the risk analysis to the bottom of the list of priorities. But this leaves an organization vulnerable to threats it will only see in hindsight. It also often leads to scrutiny from OCR and the public.
The Health Information Technology for Economic and Clinical Health (HITECH) Act, part of the larger American Recovery and Reinvestment Act of 2009, was created to encourage and regulate the use of technology in healthcare. HITECH brought meaningful use, an incentive plan designed to increase the use of certified electronic medical records, and amendments to the Security Rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Although some provisions of HITECH have not been implemented (e.g., the more robust three-year accounting of disclosures for electronic protected health information [PHI]), the following is a list of the major topics that have been amended with the adoption of HITECH:
Creating secure passwords, guest wireless networks, and emailing PHI
by Chris Apgar, CISSP
Q: I work at a doctor's office. If a patient calls and asks to have a copy of his or her medical records sent to his or her home address, are we required to obtain any additional verification beyond checking that the address matches the one we have on file? We have a patient portal where most of our patients are able to access their records, but some still prefer to have copies sent to them.
A: As with any request for PHI from an external party, whether it be the patient or someone else, proper authentication is necessary. This means you need to ask questions such as what is the patient's birthdate before agreeing to send the patient a copy of his or her medical record or designated record set (DRS).
It's a good idea to ask the patient to make the request in writing. Per the HIPAA Privacy Rule, "The covered entity may require individuals to make requests for access in writing, provided that it informs individuals of such a requirement" (45 CFR §164.524(b)(1). This is not a "you shall." It's a "may" so in the end you may elect to not require the request be in writing. However, this might leave your practice vulnerable to the risk of someone impersonating the patient and requesting the record or the patient later complaining you sent a copy of his or her DRS without his or her permission.
If you require patients to make the request in writing, you can't make it too burdensome. For example, you can't require patients get the signed request notarized or walk the request in to the doctor's office. OCR recently published guidance regarding a patient's right to access his or her DRS (www.hhs.gov/hipaa/for-professionals/privacy/guidance/access). It provides more detailed information about the dos and don'ts of meeting the HIPAA Privacy Rule requirement that patients are entitled to view or request a copy of their DRS.
Editor's note: Apgar is president of Apgar & Associates, LLC, in Portland, Oregon. He is also a BOH editorial advisory board member. This information does not constitute legal advice. Consult legal counsel for answers to specific privacy and security questions. Opinions expressed are that of the author and do not represent HCPro or ACDIS. Email your HIPAA questions to Associate Editor Nicole Votta at nvotta@hcpro.com.
