I’ve generally been writing more about the EMR side of EMR and HIPAA lately. For the most part, it seems readers are more interested in EMR and EHR than they are in the details of HIPAA. Although, one of my top posts ever is from back in 2006 about HIPAA Privacy Examples and HIPAA Lawsuits. It seems that people are most interested in HIPAA when it has something to do with a HIPAA violation or lawsuit.

Today’s HIPAA violation could very likely become a HIPAA lawsuit. Plus, it is a word of caution to those about training your staff on HIPAA requirements and also on proper use of social media in healthcare.

Anne Steciw posted about the violation on Search Health IT. Here’s an excerpt from her post:

Details of the health data breach provided by the Los Angeles Daily News indicate that the employee, who was provided by a staffing agency, shared a photo on his Facebook page of a medical record displaying a patient’s full name and date of admission. The employee appeared to be completely ignorant of HIPAA laws.

I’m sure every hospital and healthcare administrator is cringing at this. I’m sure many could share stories of HIPAA issues related with staffing agencies as well. Although, it’s really hard for me to understand how someone even from a staffing agency could be so ignorant to the HIPAA laws. I’m not overstating how ignorant this person was in this situation. The above article explains something even more outrageous and unbelievable:

Even after being told by other posters that he was violating the patient’s privacy, the employee argued: “People, it’s just Facebook…Not reality. Hello? Again…It’s just a name out of millions and millions of names. If some people can’t appreciate my humor than tough. And if you don’t like it too bad because it’s my wall and I’ll post what I want to. Cheers!”

To me this is totally mind boggling. I’m sure many will argue that this person was exhibiting many of the characteristics of the Facebook generation of users. That’s a cop out and an excuse, but does make a larger point that many of the next generation have these outlandish views of what’s theirs and what’s ok and reasonable. Sadly, far too many people think when it’s humor it’s ok to do anything. It’s not and I’m sure those dealing with HIPAA violations won’t find it a reasonable excuse either.

One thing I really hate about stories like this is that they give a bad name to use of social media in healthcare. Social media is like most things which can be used for good or bad. It’s a shame if incidents like this discourage people from accessing the benefits of social media.

This is another good example of how our biggest HIPAA privacy vulnerability is people.

One good thing that could come out of my post about Meaningful Use Attestation Issues is that it will hopefully awaken providers to realize that meeting the meaningful use requirements requires more than just opening your proverbial “EHR software box.” Indeed, you have to do a fair amount of work to make sure that you’re using your EHR software in the right way to meet the meaningful use measures.

In fact, in response to that post, Mike Regan from ACR2 Solutions pointed out one meaningful use requirement that an EMR software can’t accomplish.

The company I work with focuses on Risk Assessments for the HIPAA Security Rule and Meaningful Use Item 15. We found a number of EMR vendors who guaranteed their clients that all that the client needed to do for Item 15 is install their EMR software. Most folks would realize that an EMR software package cannot accomplish a Risk Analysis required by 45 CFR 164. Granted the EMR vendor can ensure that the data is encrypted and access properly controlled but that is about all they can do. How would the EMR software know about the client’s written HIPAA Security Rule policies? We contacted many of the vendors to make them aware of a potential problem with their marketing pitches. As recent as a month ago, we found a sales rep for a major EMR vendor, still spouting the “just install our software that is all you need for Meaningful Use” marketing pitch. We even pointed out to him that his own CTO had recanted that pitch and now the legal department has added verbage to the sales agreement indicating that their clients must meet the requirements of privacy and security laws.

We have informed CMS of the problem and they are looking into the issue. The recent OIG tasking to review Meaningful Use recipients to ensure that they met the requirements may have been the outcome. I’m certain that there are a number of providers who have attested that they have completed Item 15 who have not completed a proper Risk Assessment based on this erroneous guidance from EMR vendors. While I doubt there would be legal action taken by CMS given that the provider acted in good faith and was mislead by the marketing pitch, what action would be taken against the provider remains to be seen.

Yes, this is going to get very interesting indeed. I guess people should know that they have to dot all their i’s and cross all their t’s when they’re getting money from the government. I have a feeling a bunch of basically innocent people are going to get hurt by things like this. Although, I am cautiously hopeful that CMS will be reasonable with it all.

Guest Blogger: Jan McDavid is General Counsel and Compliance Officer at HealthPort, a Release of Information and Audit Management Technology company. You can read more of Jan’s posts on the HealthPort blog.

The following is a 4 part series of blog posts on the HIPAA Breach Notification Rules. Here’s a link to read all of the HIPAA Breach Notification Rules guest posts.

In the world of release of information (ROI), we see the breach of one or two records much more frequently than the massive, over-500 events. Smaller, one- or two-record breaches do not require immediate notification to HHS. The HITECH Act says they should be aggregated and sent to HHS at the end of each year. In 2010, the agency received more than 25,000 reports of smaller breaches affecting more than 50,000 individuals. The complete Annual Report to Congress (PDF) from HHS for 2009 and 2010 is available online.

The most common, inadvertent breaches within the ROI process involve sending the wrong record to the wrong person or third party. It is usually human error that produces these breaches. For example, the CE gets a written request from an insurance company, attorney or patient for medical record #12345. Someone pulls the wrong medical record either paper-based or electronic, say medical record #12344 and sends it. The result—a breach!

Training, education, skilled staff and solid procedures are the best approach to minimizing human error-based breaches, but they are inevitable. If and when it happens, the CE must evaluate sending a notification to the patient.

Another observation about breaches is that reactions to them seem to be very polarizing. Sometimes we see “breach fatigue” by patients. They hear so much about breaches that any leakage of their information is considered “no big deal” and simply a reality of modern, high-tech times. “After all, who really cares about the appendectomy I had ten years ago?” The opposite pole is that some patients become very upset and exhibit a sense of great concern.

Ultimately, the balance between a patient’s right of confidentiality and the provider’s needs for workflow consistency will continue to evolve. In the meantime, until a final breach notification rule is released, every CE must determine for itself how patient notices are analyzed and handled.

Guest Blogger: Jan McDavid is General Counsel and Compliance Officer at HealthPort, a Release of Information and Audit Management Technology company. You can read more of Jan’s posts on the HealthPort blog.

The following is a 4 part series of blog posts on the HIPAA Breach Notification Rules.

It is widely expected that Health and Human Service (HHS) final disclosure rules will mandate notification be done in every case. Should this occur as predicted, additional patient education will be needed to avoid the concerns mentioned above.

Further complicating matters is the fact that hospitals must adhere to HHS rules AND those at the state level. State laws in some cases are more onerous than federal laws and they continue to morph. Just trying to stay on top of all the changes may be reason enough to disclose every instance of breached information. Whether it contains protected health information (PHI) or not, some states require patient notification in every instance of the inadvertent release of certain i.d. information.

In next week’s post, we’ll cover whether small breaches are still reportable.

Seems like the comments being made on posts and being emailed to me have been really interesting lately. As I often like to do, I want to highlight those that provide interesting stuff in the comments since many people don’t read all the comments. Here’s one such comment from ip-doctor on my post about de-identified healthcare data.

I am interested in knowing how readers answer John’s question re position on use of de-identified data. My guess is that people don’t know it’s going on and will object to it happening in principle.

Securing PHI feels a lot like Y2K. No doubt breaches occur, and, when they do, they are certainly costly for the offending HCO, but how many examples are there of leaked information being used to harm someone? Seems like the same proscriptions vs. extortion, blackmail, and libel would prevent individuals from using illegally obtained PHI to harm patients.

In fact, the odds that there is a Person A who wishes to harm Person B AND who somehow comes up with Person B’s sensitive PHI AND is able to use it to harm Person B without Person B having ample legal recourse against Person A are hopelessly LONG. Breaches of thousands/hundreds of thousands/millions of records are too large and unspecific to be “used” for nefarious purposes.

We need to secure PHI, but we are hoisting ourselves on our own petards if we let legitimate concerns about the use of patient data block or slow our adoption of EMRs and HCIT for ACOs and PCMHs. Just as there are real benefits associated with use of de-id’ed patient data, there are (significant, hidden) costs with not sharing health data.

The irony here is that the most common, undeniably harmful use of sensitive PHI has been to deny coverage to patients with pre-existing conditions. Kind of makes sense. It is, after all, health information.

Nothing like sharing a post about the fears and challenges associated with sharing data and privacy and following up with a post that talks about how it might not be as big of a risk as many like to make it. Of course, the happy place is somewhere in the middle where we do a good job securing the data while as HIPAA outlines, we avoid placing an undue burden on patient care.

Guest Blogger: Jan McDavid is General Counsel and Compliance Officer at HealthPort, a Release of Information and Audit Management Technology company. You can read more of Jan’s posts on the HealthPort blog.

The following is a 4 part series of blog posts on the HIPAA Breach Notification Rules.

Some hospitals feel that, since the risk analysis only produces subjective results, why bother? They believe that the effort and expense incurred derives no real benefit for CE or patient, and they just notify the potentially affected patient in every instance.

In my opinion, notifying the patient for each breach is a little risky in itself. Patients often have no context in which to view a breach.

For example, losing a flash drive containing unencrypted PHI on 1,000 patients entails obvious risks – the risk of someone finding and misuing the information, for example. The law rightfully requires patient notification in such cases. However, if a patient’s record is inadvertently mailed to a house number that does not exist (perhaps due to a typo which transposed two digits), chances are good that the post office will either return the records to the sender or else the package will go undelivered.

If the records are not accounted for, it is generally accepted that it should be considered a breach; however, telling the patient this may raise an alarm about something that probably will not happen. A thorough risk analysis, although subjective, might conclude that such a breach did NOT have a “substantial risk of reputational or financial harm” to the patient. This was apparently HHS’s thinking when it required the risk analysis to be conducted.

In next week’s post, we’ll cover the possible changes to the breach notification rules.

Guest Blogger: Jan McDavid is General Counsel and Compliance Officer at HealthPort, a Release of Information and Audit Management Technology company. You can read more of Jan’s posts on the HealthPort blog.

The following is a 4 part series of blog posts on the HIPAA Breach Notification Rules.

Eight thousand providers. One question. When do we notify patients of a breach? I hear this question several times a week from all types of covered entities; hospitals, clinics and physician offices. Many are confused or misinformed about the answer. Furthermore, real world experience varies dramatically. Some providers notify everyone. Others notify only when necessary. What’s the answer?

First and foremost, you do not have to notify the patient each and every time there is a breach of protected health information (PHI). The law requires notification only if you meet one of two conditions:
1) When 500 or more records have been breached at the same time, you must notify the patients involved, OR
2) When you as the covered entity (CE) have conducted the required “risk analysis” and determined the patient (or patients) could suffer substantial financial or reputational harm.

The issue with the second requirement is the term “substantial”. It is very subjective and not fully defined within the rules. Conducting a risk analysis and determining the extent would appear to be a classic case of the fox guarding the hen house. As such, many observers expected hospitals NOT to notify, or perhaps under-notify, as the cost of a breach can be very high — both direct costs and the soft cost of reputational harm to the CE. However, we see providers taking a “better safe than sorry” approach and over-notifying.

In next week’s post, we’ll cover the risks of over-notifying after a breach.

There’s been an interesting situation going on between a couple EHR vendors. I first saw this when I got the press release that meridianEMR filed a lawsuit against UroChart. The lawsuit claims that UroChart obtained access to meridianEMR’s data.(Note: See this comment from IT Director of meridianEMR that discusses more details of what happened and how no data was breached.)

Lawsuits aside, meridianEMR is trying to capitalize on the situation by talking about their EMR security monitoring system was what notified them of the breach attack by UroChart. They call it their Advanced Monitoring System (AMS) and say it responds immediately to any breaches attacks and protects patient records.

I’m not sure if it’s a smart move to use a breach of their system as a way to promote their ability to protect patient records. I guess they can argue that their monitoring service was what protected their patient records. However, the lawsuit is claiming that patient records were at risk. I don’t think that’s something any EMR vendor wants tied to their name, is it?

Marketing strategy aside, this security monitoring service is interesting and I can’t say I’ve really seen something like it in any other EMR system. Sure, they all have some sort of audit tracking and trail. However, I think most EMR vendor’s strategy is not detection, but prevention. They harden their systems using the best techniques, but don’t do much to try and detect breaches. Should that be changed?

One problem with breaches is that good hackers know how to even avoid the detection part. I still remember when my friend showed me how he had hacked into a server and you could see him logged in. Then, he ran a script and you couldn’t see him anymore. I guess if you compare it to the physical world, it’s like having a camera watching the front door, but no camera on the back door. However, in the digital world there are lots of different doors, including those we don’t know about.

Some might argue that ignorance is bliss in this instance. Sure, no EMR vendor is going to admit that in public. Neither is a doctor. However, the regulations have made it pretty harsh when you know that there’s been a breach of your system. You basically have to make it known to all the world. However, if you don’t know that your EMR system has been compromised, then you have no such requirements.

I’m sure some people won’t like me saying this, but be sure that many doctors and EMR vendors have thought about this. I’m sure there were parallels in the paper world too. So, let’s not act like this is really that new. Although, certainly technology has made it possible to have much larger breaches.

One thing worth noting is that I haven’t seen a group of healthcare hackers forming. There’s no underground group of people that I’ve heard of that are trying to hack and get access to healthcare data. Financial data is much easier to monetize for a hacker than healthcare data. That’s not to say that healthcare data isn’t valuable and can’t have consequences if it’s put in the wrong hands. However, most hackers do it for the Lulz, for financial gain, or vengeance. Things could certainly change, but I haven’t seen healthcare as a prime target for hackers. I’d love to see if you have evidence that says otherwise.

If you evaluate the list of breaches that are published by HHS, this seems to agree with my above evaluation. Almost every single breach was just due to something being lost, a physical device being stolen (which you can almost guarantee they wanted the laptop and not the healthcare data which they probably didn’t even know was on the laptop), or inappropriate use by someone on a system already.

It will be interesting to see how these EMR security monitoring systems evolve. Plus, will we see more need for these type of protections and monitoring of EMR systems?

Well, privacy rears its ugly head in healthcare again. I don’t want to treat a person’s privacy lightly, but I must admit that I kind of had to laugh at the breach I’m about to tell you about. I think you’ll see why.

I first read about this privacy breach on this Techcrunch article (They originally found it on nextWeb). Here’s a quote from the Techcrunch article:

Yikes. Users of fitness and calorie tracker Fitbit may need to be more careful when creating a profile on the site. The sexual activity of many of the users of the company’s tracker and online platform can be found in Google Search results, meaning that these users’ profiles are public and searchable.

I’ve been a big fan of Fitbit and other devices like that which are trying to track a person’s health and fitness. I think there’s a real market for these devices, but this is a pretty ugly misstep for Fitbit. Although, a search for sexual activity and FitBit isn’t returning results any more. Here’s the Fitbit blog post which details the steps they’ve taken to secure their users profiles. Seems like a reasonable and a smart response to the privacy issue.

Before I go any farther, we should be clear that this isn’t a HIPAA violation. The patient put their information online and agreed to have that information out there. We could argue how much they really agreed to have their profile public, but I’m quite sure that Fitbit would be fine in a HIPAA lawsuit. However, that doesn’t mean they’re not taking the hit for poor decisions.

What can future healthcare app and device companies learn from the Privacy issues at Fitbit?

1. Default healthcare profiles to private. Allow the user to opt in to make it public. Some might want it public, but no company should assume it should be public. This isn’t Facebook.

2. Consider more granular privacy controls. I may want part of my profile public, but part private (ie. sexual activity in a fitness application).

3. Be aware of what you allow search engines to index. There’s a whole category of hackers called Google Hackers. They use Google to find sensitive information like the story above. It’s amazing the power of Google hacking.

Some suggestions to e-patients that put their health data online:

1. Be careful about what information you’re putting online.

2. Check out where the information you put online will be available. Is it private? Is it public? Is it partially public? Can search engines see it?

There’s little doubt that more and more healthcare information is going to be put online by patients. We’re going to see more and more privacy issues like the one mentioned above. This incident will do little to deter this trend. However, hopefully it can serve as a learning experience for Fitbit and other healthcare companies that are entering this new world of online health information.

I don’t know about the rest of you, but a big part of me is getting anxious for the start of college football (for my team it starts tomorrow) and the NFL starting on Thursday. It’s one of my favorite times of the year and probably my wife’s least favorite times, but I digress.

During the #HITsm chat today I saw a great quote that talked about HIPAA from Peyton Manning:
@bwilsonIntel – Ben Wilson
RT @jonmertz: HIPAA qte of the week from Peyton Manning: “I dont know what HIPAA stands for, but I believe in it and I practice it.” #HITsm

In case you don’t follow football, Peyton Manning is recovering from neck surgery and the above comment was a nice way for Peyton to say he didn’t want to talk about his medical information.

How long until someone from Peyton’s doctor’s office or hospital gets canned for looking at his records?

Since we’re talking football, healthcare and HIPAA, I’d be remiss to not mention Arian Foster’s recent tweet. This is what he said:
@ArianFoster – Arian Foster
This is an MRI of my hamstring, The white stuff surrounding the muscle is known in the medical world as anti-awesomeness http://moby.to/zta9xp

That’s right. Arian Foster tweeted a picture of the MRI of his hamstring. Of course, he’s welcome to do this. He’s suffering the consequences of his choice (his team said it’s a violation of their team policies). When I heard about the tweet, all I could think was, It’s amazing what some people will do to make a joke. I know this first hand.

Also, I haven’t dug into Arian’s MRI, but it seems like there might be some info in the corners of his MRI that he might not want people to know, no?