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HIPAA Applies To Those Who Don’t Know About It

Posted on May 17, 2012 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.

Now here’s a pretty how-to-do for HIPAA lawbreakers. According to a new appellate decision in California, people convicted of accessing patient records illegally can be punished whether or not they knew it was illegal.

The case, United States v. Zhou, concerned the acts of one Huping Zhou, a former research assistant in rheumatology at the University of California at Los Angeles Health System. After being fired from his job as a research assistant in 2003, Zhou accessed patient records without authorization at least four times (and obviously, got caught).  After some sparring over charges, the feds eventually prosecuted him for HIPAA violations.

For years, the case worked its way through the system, with Zhou taking the position that he didn’t know accessing the patient records was illegal, and for that reason should not be found guilty.

Last month, the case ended up in the United States District Court for the Central District of California last month. It took the judges only a few weeks to decide that yes, Zhou was responsible even though he may not have known that his data spying was illegal under HIPAA.  Wow.

The HIPAA provision the judges relied on was the following:

HIPAA provides that: “[a] person who knowingly and in violation of this part — (1) uses or causes to be used a unique health identifier; (2) obtains individually identifiable health information relating to an individual; or (3) discloses individually identifiable health information to another person, shall be punished as provided in subsection (b).” 42 U.S.C. § 1320d-6(a).

And their analysis of Zhou’s defense did not go the way he had hoped. Again, from the appellate decision:

[T]he plain text of Section 1320d-6(a)(2) [of HIPAA]  is not limited to defendants who knew that their
actions were illegal. Rather, the misdemeanor applies to defendants who knowingly obtained individually identifiable health information relating to an individual, and obtained that information in violation of HIPAA.

In other words,  if you knowingly snoop into patient records, you’re on the hook even if you never knew HIPAA existed. (Note, I am not a lawyer or court-watcher, but this is how most legal commentators have interpreted the decision.)

While I like my privacy as much as anyone else, this case does trouble me. While it’s unlikely that a hospital staffer would think PHI peeping was OK, some healthcare workers — in settings such as, say, home care or a small mental health practice — might have no idea that the Department of Justice might come knocking at their door.

Wouldn’t it be more logical to prosecute the hospital for being so insecure that its data could be accessed by an angry ex-employee?  If it were my PHI, that’s where I’d be venting my wrath.

Patients Medical Record Posted to Facebook – HIPAA Violation

Posted on January 24, 2012 I Written By

John Lynn is the Founder of the HealthcareScene.com blog network which currently consists of 10 blogs containing over 8000 articles with John having written over 4000 of the articles himself. These EMR and Healthcare IT related articles have been viewed over 16 million times. John also manages Healthcare IT Central and Healthcare IT Today, the leading career Health IT job board and blog. John is co-founder of InfluentialNetworks.com and Physia.com. John is highly involved in social media, and in addition to his blogs can also be found on Twitter: @techguy and @ehrandhit and LinkedIn.

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.

Securing PHI Feels A Lot Like Y2K

Posted on October 19, 2011 I Written By

John Lynn is the Founder of the HealthcareScene.com blog network which currently consists of 10 blogs containing over 8000 articles with John having written over 4000 of the articles himself. These EMR and Healthcare IT related articles have been viewed over 16 million times. John also manages Healthcare IT Central and Healthcare IT Today, the leading career Health IT job board and blog. John is co-founder of InfluentialNetworks.com and Physia.com. John is highly involved in social media, and in addition to his blogs can also be found on Twitter: @techguy and @ehrandhit and LinkedIn.

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.

HIPAA Lawsuit – PHI by Un-encrypted Email

Posted on December 29, 2010 I Written By

John Lynn is the Founder of the HealthcareScene.com blog network which currently consists of 10 blogs containing over 8000 articles with John having written over 4000 of the articles himself. These EMR and Healthcare IT related articles have been viewed over 16 million times. John also manages Healthcare IT Central and Healthcare IT Today, the leading career Health IT job board and blog. John is co-founder of InfluentialNetworks.com and Physia.com. John is highly involved in social media, and in addition to his blogs can also be found on Twitter: @techguy and @ehrandhit and LinkedIn.

In kind of ironic timing, the news was recently reported of a patient talking to lawyers about a possible lawsuit against a doctor who sent her protected health information (PHI) to his home email in an un-encrypted format. The irony is that for the past week, my post on Email not being HIPAA secure has been having a really good discussion happening in the comments about these very issues (you should go read through the comments, they’re very interesting).

One interesting part of the above news story is that it didn’t even include the most common personal information used for identity theft. Certainly a person’s name and medical information should be kept private as well and could have consequences related to its release on the internet. However, it definitely doesn’t bring out the privacy critics like a breach of financial related info would bring.

While I personally hate lawsuits, a part of me kind of hopes that this or some other lawsuit happens related to email and PHI. Not because I like lawsuits or I want someone to be held responsible. Mostly because we could use some legal precedent to better enable those who want to use technology like email. Until the precedence is set (or a more specific law), I think that many people are just too afraid to use email for any sort of health care related communication.

In the comments I mentioned above, someone even commented about them wanting a doctor who would let them waive their right to privacy in the name of convenience. Basically, they would rather use email to communicate even PHI at the risk of someone seeing their health information so that they can use communication tools like email in their healthcare. I bet there are a lot more people who would opt in for this also. The problem is that the law is such that I don’t know many doctors who are willing to take the risk even if the patient gives them permission.

The best alternative right now is the patient portal where a patient receives an email saying something has been added or updated on the portal and invites them to login to the private secured portal to see the PHI or other health information. Not perfect and not that broadly adopted.

Lots of other issues related to email with doctors, but at least resolving the privacy and security ones would allow us to focus on those other issues.