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Windows Server 2003 Support Ends July 14, 2015 – No Longer HIPAA Compliant

Posted on June 16, 2015 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.

If this post feels like groundhog day, then you are probably remembering our previous post about Windows XP being retired and therefore no longer HIPAA compliant and our follow up article about a case where “unpatched and unsupported software” was penalized by OCR as a HIPAA violation.

With those posts as background, the same thing applies to Microsoft ending support for Windows Server 2003 on July 14, 2015. Many of you are probably wondering why I’m talking about a 2003 software that’s being sunset. Could people really still be using this software in healthcare? The simple answer is that yes they are still using Windows Server 2003.

Mike Semel has a really great post about how to deal with the change to ensure you avoid any breaches or HIPAA penalties. In his post he highlights how replacing Windows Server 2003 is a much larger change than it was to replace Windows XP.

In the later case, you were disrupting one user. In the former case, you’re likely disrupting a whole group of users. Plus, the process of moving a server to a new server and operating system is much harder than moving a desktop user to a new desktop. In fact, in most cases the only reason organizations hadn’t moved off Windows XP was because of budget. My guess is that many that are still on Windows Server 2003 are still on it because the migration path to a newer server is hard or even impossible. This is why you better start planning now to move off Windows Server 2003.

I also love this section of Mike Semel’s post linked above which talks about the costs of a breach (which is likely to happen if you continue using unsupported and unpatched software):

The 2015 IBM Cost of a Data Breach Report was just released and the Ponemon Institute determined that a data breach of healthcare records averages $ 398 per record. You are thinking that it would never cost that much to notify patients, hire attorneys, and plug the holes in your network. You’re right. The report goes on to say that almost ¾ of the cost of a breach is in loss of business and other consequences of the breach. If you are a non-profit that means fewer donations. If you are a doctor or a hospital it could mean your patients lose trust and go somewhere else.

I’m sure that some will come on here like they did on the Windows XP post and suggest that you can keep using Windows Server 2003 in a HIPAA compliant manner. This penalty tells me otherwise. I believe it’s a very risky proposition to continue using unsupported and unpatched software. Might there be some edge case where a specific software requires you to use Windows Server 2003 and you could set up some mix of private network/firewalls/access lists and other security to mitigate the risk of a breach of the unsupported software. In theory, that’s possible, but it’s unlikely most of you reading this are in that position. So, you better get to work updating from Windows Server 2003.

Will Hospitals Be At Risk for HIPAA Audits If They Don’t Have HIPAA Violations?

Posted on February 5, 2015 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.

Sutter Health’s California Pacific Medical Center (CPMC) recently announced an employee accessing patient files without a business or treatment purpose. Here are the details from their press release:

California Pacific Medical Center (CPMC) recently notified 844 patients of its discovery that a pharmacist employee may have accessed their records without a business or treatment purpose.

CPMC first learned of the incident through a proactive audit of its electronic medical record system on October 10, 2014. The initial audit resulted in identification and notification of 14 individuals on October 21, 2014. Following its policy, CPMC terminated its relationship with the employee and broadened the investigation

The expanded investigation identified a total of 844 patients whose records the employee may have accessed without an apparent business or treatment purpose. It is unclear whether all of these records were accessed inappropriately but, out of an abundance of caution, CPMC notified all of these patients.

This was a fascinating breach of HIPAA. In fact, it starts with the question of whether we should call this a breach. In the HIPAA sense, it’s a breach of HIPAA. In the IT systems security sense, I could see how people wouldn’t consider it a breach since the person didn’t visit anything he wasn’t authorized by the IT system to see. Semantics aside, this is a HIPAA issue and is likely happening in pretty much every organization in the US.

My last statement is particularly true in larger organizations. The shear number of staff means that it’s very likely that some users of your IT systems are looking at patient records that don’t have a specific “business or treatment purpose.” I’m sure some will use this as a call for a return to paper. As if this stuff didn’t happen in the paper world as well. It happened in the paper world, but we just had no way to track it. With technology we can now track every record everyone touches. That’s why we’re seeing more issues like the one reported above. In the paper world we’d have just been ignorant to it.

With this in mind, I start to wonder if we won’t see some HIPAA audits for organizations that haven’t reported any violations like the ones above. Basically, the auditors would assume that if you hadn’t reported anything, then you’re probably not proactively auditing this yourself and so they’re going to come in and do it for you. Plus, if you’re not doing this, then you’re likely not doing a whole slew of other HIPAA requirements. On the other hand, if your security policies and procedures are good enough to proactively catch something like this, then you’re probably above average in other areas of HIPAA privacy and security. Sounds reasonable to me. We’ll see if it plays out that way.

The other lesson we need to take from the above HIPAA breach notification is that we shouldn’t be so quick to judge an organization that proactively discovers a breach. If we’re too punitive with healthcare organizations that find and effectively address a breach like this, then organizations will stop finding and reporting these issues. We should want healthcare organizations that have a culture and privacy and security. Part of that culture is that they’re going to sometimes catch bad actors which they need to correct.

Healthcare IT software like EHRs have a great ability to track everything that’s done and they’re only going to get better at doing it. That’s a good thing and healthcare information security and privacy will benefit from it. We should encourage rather than ridicule organizations like the one mentioned above for their proactive efforts to take care of the privacy of their patients’ information. I hope we see more organizations like Sutter Health who take a proactive approach to the security and privacy of healthcare information.

Can We Start Being Human?

Posted on August 19, 2014 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.

Excuse a moment of somewhat personal commentary, but this story in the New York Times has been making the rounds. Basically, the boards full of smiling babies in a doctor’s office are considered a privacy violation. Here’s an excerpt from the article:

Under the law, the Health Insurance Portability and Accountability Act, baby photos are a type of protected health information, no less than a medical chart, birth date or Social Security number, according to the Department of Health and Human Services. Even if a parent sends in the photo, it is considered private unless the parent also sends written authorization for its posting, which almost no one does.

When I read stories like this, I ask myself “Have we lost all common sense? Can’t we be human?” I get how privacy is important. I’ve written this blog for 9 years and so I know the consequences of HIPAA breaches. Although, I think Dr. Moritz covers my view really well:

“I think we have to have some common sense with this HIPAA business,” Dr. Moritz continued. “To leave medical records open to the public, to throw lab results in the garbage without shredding them, that makes sense” to prohibit. “But if somebody wants to post a picture of something that’s been going on for a millennium and is a tradition, it seems strange to me not to do that,” he said.

I know there are ways to comply with the law and preserve the baby board. Have the parents sign a release form when they drop off the picture. I think you could also add this note in your HIPAA notice that the patient signs before their first visit. However, I think this is missing the point. Isn’t it common sense that someone who sends a picture of their baby to the office isn’t afraid of having that picture shared?

Certainly this change is not life or death stuff. Although, I think the baby boards did provide some humanity to an otherwise sterile office. However, I hate the trend of where this leads. In far too many things we can’t be human anymore. Common sense is missing in so many areas of life and instead of giving people the benefit of the doubt we’re too easy to condemn people who had no ill intent.

I realize there are bad people out there that do bad things. However, they’re the minority and its sad when the minority is able to have such an impact on the majority.

HIPAA Slip Leads To PHI Being Posted on Facebook

Posted on July 1, 2014 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.

HHS has begun investigating a HIPAA breach at the University of Cincinnati Medical Center which ended with a patient’s STD status being posted on Facebook.

The disaster — for both the hospital and the patient — happened when a financial services employee shared detailed medical information with father of the patient’s then-unborn baby.  The father took the information, which included an STD diagnosis, and posted it publicly on Facebook, ridiculing the patient in the process.

The hospital fired the employee in question once it learned about the incident (and a related lawsuit) but there’s some question as to whether it reported the breach to HHS. The hospital says that it informed HHS about the breach in a timely manner, and has proof that it did so, but according to HealthcareITNews, the HHS Office of Civil Rights hadn’t heard about the breach when questioned by a reporter lastweek.

While the public posting of data and personal attacks on the patient weren’t done by the (ex) employee, that may or may not play a factor in how HHS sees the case. Given HHS’ increasingly low tolerance for breaches of any kind, I’d be surprised if the hospital didn’t end up facing a million-dollar OCR fine in addition to whatever liabilities it incurs from the privacy lawsuit.

HHS may be losing its patience because the pace of HIPAA violations doesn’t seem to be slowing.  Sometimes, breaches are taking place due to a lack of the most basic security protocols. (See this piece on last year’s wackiest HIPAA violations for a taste of what I’m talking about.)

Ultimately, some breaches will occur because a criminal outsmarted the hospital or medical practice. But sadly, far more seem to take place because providers have failed to give their staff an adequate education on why security measures matter. Experts note that staffers need to know not just what to do, but why they should do it, if you want them to act appropriately in unexpected situations.

While we’ll never know for sure, the financial staffer who gave the vengeful father his girlfriend’s PHI may not have known he was  up to no good. But the truth is, he should have.

Six Reality Checks of HIPAA Compliance

Posted on April 23, 2014 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.

Between Windows XP causing HIPAA compliance issues and the risk associated with the risk assessment required by meaningful use, many in healthcare are really waking up to the HIPAA compliance requirements. Certainly there’s always been an overtone of HIPAA compliance in the industry, but its one thing to think about HIPAA compliance and another to be HIPAA compliant.

This whitepaper called HIPAA Compliance: 6 Reality Checks is a great wake up call to those that feel they have nothing to worry about when it comes to HIPAA. While many are getting ready, there are still plenty that need a reality check when it comes to HIPAA compliance.

Here’s a look at why everyone could likely benefit from a HIPAA reality check:
(1) Data breaches are a constant threat
(2) OCR audits reveal health care providers are not in compliance
(3) Workforce members pose a significant risk for HIPAA liability
(4) Patients are aware of their right to file a complaint
(5) OCR is increasing its focus on HIPAA enforcement
(6) HIPAA Compliance is not an option, it’s LAW

Obviously, the whitepaper goes into a lot more detail on each of these areas. As I look through the list, what seems clear to me is that HIPAA compliance is a problem. Every organization should ask themselves the following questions:

Are we HIPAA compliant?

What are you doing to mitigate the risk of a breach or HIPAA violation?

When I look at the 6 Reality Checks details in the whitepaper, I realize that everyone could benefit from a harder look at their HIPAA compliance. A little bit of investment now, could save a lot of heartache later.

Brand Damages More than Legal Damages in HIPAA Violation

Posted on July 9, 2013 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 was recently discussing with someone the possible legal damages of a HIPAA violation by a healthcare organizations business associate. We all know that thanks to HIPAA omnibus, the business associate will now be held liable for any HIPAA breaches or violations that occur. One question I haven’t seen addressed was whether the covered healthcare organization entity would be held responsible for the business associates breaches or violations. Before, the healthcare organization would be the only one with consequences. Are the consequences for the healthcare organization still the same if a business associate has a HIPAA breach?

I think the answer probably depends on the business associate agreement. Although, maybe you can’t shield yourself of liability from business associates negligence just with a well done business associate agreement. Hopefully some of me healthcare lawyer readers can shed light on this subject.

One thing I am sure of is that the legal damages pale in comparison to the damages to a brand when a HIPAA violation occurs even when the violation is completely the responsibility of the business associate. Healthcare organizations are still going to be held responsible for the violation. No doubt we’ll hear the phrase, “the healthcare organization should have properly vetted and checked that their business associates were following HIPAA.”

While we can all agree that many healthcare organizations aren’t as diligent as they should be with business associates, should the healthcare organization have to babysit all of their business associates?

Like most things in life, there has to be a balance. You can’t play big brother with all of your business associates. You’ll drive your business associates crazy and waste a lot of resources in the process. However, I think we can look to HIPAA for the guidelines. Every healthcare organization should have a well thought out understanding and process for how they decide who they work with as business associates.

The reality is that regardless of who takes on the legal consequences of a HIPAA violation, the healthcare organization is the one that has to worry most about the damage to their brand.

URMC Faces Third HIPAA Breach

Posted on May 7, 2013 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.

The University of Rochester Medical Center has seen a third HIPAA breach, this one caused by the loss of an unencrypted USB drive by a physician, reports Healthcare IT News.  The drive, which belonged to a resident, contained protected health information on 537 patients.

Officials with URMC say they have notified the 537 former orthopedic patients whose information was lost on the drive.  Lost information included patients’ names, genders, ages, dates of birth, telephone numbers, medical record numbers, and more, though it didn’t include addresses, Social Security numbers or insurance information.

According to Healthcare IT News, the resident’s unencrypted, unprotected drive runs counter to URMC’s campus-wide policy. URMC requires physicians and staff to use only encrypted drives — the only kind which are stored in its on-campus computer center.  The latest URMC security policy also requires all mobile devices to be password protected, encrypted, and to have a time-out if unattended.

In an effort to make sure further security breaches don’t occur, the health organization is re-educating its faculty and staff on its security policy, and plans an annual education series to reinforce this training, a hospital spokesperson told Healthcare IT News.

This is URMC’s third data breach involving more than 500 patients reported to HHS, the magazine reports. The previous two breaches, which involved PHI for nearly 3,500 patients, both took place in 2010.  One of the two involved the loss of an encrypted portable electronic device.

HIPAA Infographic

Posted on September 27, 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.

Who doesn’t like a good infographic? My favorite part of this HIPAA infographic is the last section where it breaks out the number of healthcare organizations that are being investigated for HIPAA violations and the results of those investigations.

HIPAA Violation Infographic
Infographic authored by Inspired eLearning, a leading provider of online HIPAA compliance training solutions. To view the original post, check out the original HIPAA violation infographic.

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.