OCR Cracking Down On Business Associate Security

Posted on May 13, 2016 I Written By

Anne Zieger is a healthcare journalist who has written about the industry for 30 years. Her work has appeared in all of the leading healthcare industry publications, and she's served as editor in chief of several healthcare B2B sites.

For most patients, a data breach is a data breach. While it may make a big difference to a healthcare organization whether the source of a security vulnerability was outside its direct control, most consumers aren’t as picky. Once you have to disclose to them that the data has been hacked, they aren’t likely be more forgiving if one of your business associates served as the leak.

Just as importantly, federal regulators seem to be growing increasingly frustrated that healthcare organizations aren’t doing a good job of managing business associate security. It’s little wonder, given that about 20% of the 1,542 healthcare data breaches affecting 500 more individuals reported since 2009 involve business associates. (This is probably a conservative estimate, as reports to OCR by covered entities don’t always mention the involvement of a business associate.)

To this point, the HHS Office for Civil Rights has recently issued a cyber-alert stressing the urgency of addressing these issues. The alert, which was issued by OCR earlier this month, noted that a “large percentage” of covered entities assume they will not be notified of security breaches or cyberattacks experienced by the business associates. That, folks, is pretty weak sauce.

Healthcare organizations also believe that it’s difficult to manage security incidents involving business associates, and impossible to determine whether data safeguards and security policies and procedures at the business associates are adequate. Instead, it seems, many covered entities operate on the “keeping our fingers crossed” system, providing little or no business associate security oversight.

However, that is more than unwise, given that the number of major breaches have taken place because of an oversight by business associates. For example, in 2011 information on 4.9 million individuals was exposed when unencrypted backup computer tapes are stolen from the car of a Science Applications International Corp. employee, who was transporting tapes on behalf of military health program, TRICARE.

The solution to this problem is straightforward, if complex to implement, the alert suggests. “Covered entities and business associates should consider how they will confront a breach at their business associates or subcontractors,” and make detailed plans as to how they’ll address and report on security incidents among these group, OCR suggests.

Of course, in theory business associates are required to put their own policies and procedures in place to prevent, detect, contain and correct security violations under HIPAA regs. But that will be no consolation if your data is exposed because they weren’t holding their feet to the fire.

Besides, OCR isn’t just sending out vaguely threatening emails. In March, OCR began Phase 2 of its HIPAA privacy and security audits of covered entities and business associates. These audits will “review the policies and procedures adopted and employed by covered entities and their business associates to meet selected standard interpretation specifications of the Privacy, Security, and Breach Notification Rules,” OCR said at the time.