HIPAA/ HITECH: Relief for the Newest Regulatory Headache

1. HIPAA/ HITECH: Relief for the Newest Regulatory Headache Kippy L. WrotenFounding Shareholder, Wroten & Associates Darryl A. RossShareholder, Wroten & Associates

2. Scope of the Omnibus Rule • Research uses of data – compound, more general authorizations. • Patients’ right to restrict data sharing with payors. • Requirements to modify and redistribute notices of privacy practices. • Inclusion of limitations on use of genetic information for underwriting. • Clarifies HHS Secretary’s role in enforcement, imposition of civil money penalties (CMPs) and CMP liability for acts of agents.

3. What’s Not in the Omnibus Rule • Accounting of Disclosures – still in process. • Methodology for giving individuals “harmed” by HIPAA violations a percentage of any civil monetary penalties or settlements collected. • Guidance for implementation of minimum necessary standard. • HITECH also mandated study of definition of “psychotherapy notes” – no specific deadline for the study.

4. HIPAA - Privacy vs. Security HIPAA Privacy Rule The need to protect medical records and other health information in any form (electronic, paper, or out of our mouths) from being shared, viewed, distributed, etc. HIPAA Security Rule The need to develop and maintain security of all electronic health information, including storage and transmission.

5. Privacy Rule

6. Security Rule

7. Health Information Technology for Economic and Clinical Health Act (2009) Expands Protection

8. How Do HIPAA & HITECH Apply to Me? • Covered Entities • Hybrid Entities • Business Associates (Vendors)

9. Protected Health Information • What is it? • Identifies the individual • Transmitted or maintained by a CE or BA • Relates to individual's physical or mental health or payment for health care • Demographic information

10. Common Names SSN Medical record #s Account numbers Dates of treatment Did You Know? Vehicle ID & Serial Numbers - license plate numbers Device ID & serial numbers Universal Resource Locators (URLs) Internet Protocol (IP) addresses Biometric identifiers, including finger and voice prints Full face photographic images and any comparable images Any other unique identifying number, characteristic, or code PHI • Probably Aware • Telephone numbers • Fax numbers • Electronic mail addresses • Certificate/license numbers

12. Covered Entities Health Plans An individual or group plan that provides or pays the cost of medical care Health care clearinghouses A public or private entity, including a billing service, re-pricing company, community health management information system or community health information system, and “value added” networks and switches that either process or facilitate the processing of health information Health care providers Care, services, or supplies related to the health of an individual, including (1) preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care, and counseling, service, assessment, or procedure with respect to the physical or mental condition, or functional status, of an individual that affects the structure or function of the body; and (2) sale or dispensing of a drug, device, equipment, or other item in accordance with a prescription. + …who electronically transmit any health information

13. Hybrid Entities • A single legal entity that is a covered entity, performs business activities that include both covered and non-covered functions, and designates its health care components as provided in the Privacy Rule. If a covered entity is a hybrid entity, the Privacy Rule generally applies only to its designated health care components. However, non-health care components of a hybrid entity may be affected because the health care component is limited in how it can share PHI with the non-health care component. The covered entity also retains certain oversight, compliance, and enforcement responsibilities.

14. Claims Processing Data Analysis Utilization Review Billing Legal (including litigation counsel) Actuarial Accounting Consulting Data Aggregation Management Administrative Accreditation Financial Services E-Discovery Vendors Copier Technicians (if your copier has memory) Shredding Services Computer Support Services Records subpoenas/duplication services Who is a Business Associate?

15. Business AssociatesHITECH Expands Privacy and Security • Expanded definition of "business associate“- “Business associate” means one who, on behalf of a Covered Entity • creates, receives, maintains or transmits PHI • "Business associate" now also means "subcontractor of business associate“ who creates, receives, maintains or transmits PHI on behalf of a business associate • Status as Business Associate based upon role and responsibilities, not upon who are the parties to the contract

16. Business Associate DefinitionClarifications • Rule clarifies definition of "business associate” -- included: • Patient Safety Organizations • Health information exchange organizations, e-prescribing gateways, covered entities' personal health record vendors (not all PHRs) • Data transmission providers that require access to PHI on a routine basis • Not included – those who just provide transmission services, like digital couriers or “mere conduits.” • However, those who store PHI, even if they don’t intend to actually view it, are BAs (implications for cloud model EHRs).

17. Business Associates

18. Do They Know Who They Are? • Implications for subcontractor relationships • Contract between the covered entity's BA and that BA's • Subcontractor must satisfy the BAA requirements • Subcontractor of subcontractor is also a BA, and so on • As a result, HIPAA/HITECH obligations that apply to BAs also directly apply to subcontractors

19. BAs – Uses of PHI • Uses of PHI • BAs may use or disclose PHI only as permitted by BAA or required by law • BAs may not use or disclose PHI in manner that would violate Privacy Rule • Subcontractors subject to limits in initial CE-BA agreement – Must pass along in subcontracts • BAs not making a permitted use or disclosure if not • Follow minimum necessary rules • BA does not comply if it knows of subcontractor's material noncompliance and does not take reasonable steps to cure the breach or, if such steps fail, to terminate the relationship • BAs (incl. subcontractors) subject to civil money penalties for HIPAA violations • BA/subs remain liable under contract to CE/BA • Secretary authorized to receive and investigate complaints against BAs (including subcontractors), and to take action regarding complaints and noncompliance • BAs (incl. subs) required to maintain records and submit compliance reports to Secretary, cooperate in complaint investigations and compliance reviews, give Secretary access to information • BAA - Generally, compliance required 180 days following Omnibus Rule’s effective date (3/26/13), which is 9/23/13

20. Omnibus RulesCompliance Omnibus Rules Compliance Date: September 23, 2013

21. Compliance Plan - Step One • Have you established an executive/board-level responsibility for HIPAA compliance? • Have you designated yourself as a (a hybrid entity, or (b) a single affiliated covered entity with other legally separate covered entities under common ownership or control? • Have you taken the necessary follow-up steps to document? • Have you designated responsible persons for Privacy?  For Security?  Do you have job descriptions? • Have you distributed a Notice of Privacy Practices with the identification of the Privacy and Security Officers? • Have you posted information and trained staff? • Has the staff signed confidentiality agreements related to privacy and security? • Do you have Business Associate Agreements in place?

22. Compliance Plan - Step Two • Is HIPAA privacy and security included in new employee orientation? • Is your Governing Body/Board trained? • Are volunteers and clergy trained? • How do you facilitate privacy and security awareness?

23. Risk Assessment • Administrative Safeguards • Physical Safeguards • Technical Safeguards

24. Risk Assessment - PHI Flow Chart

25. Security Risk Assessment- Organizational Requirements • Business Associates Identified • Policies & Procedures adopted • Documentation procedures adopted

26. Security Risk Assessment • Security Awareness and Training • Security Incident Procedures • Workstation Use • Device and Media Controls • Access Control • Integrity • Person/Entity Authentication • Transmission Security

27. Access Controls Limit physical access to its electronic information systems, including facilities where data housed. §164.310(a)(1). Workstation Security - physical safeguards for all workstations that access ePHI. §164.310(c). Must assure authorized users have access.

28. Workstation Security Compliance Practices Identify desktop/laptops containing ePHI Lock down procedures. Policies to prevent unencrypted ePHI from being stored on portable electronic devices and laptops. Encryption practices.

29. Movement within facility. Removal of hardware from facility. P&Ps to address final disposition of ePHI and/or medium where stored P&Ps governing removal of ePHI before device re-used. P&Ps to assure ePHI is unusable and/or inaccessible prior to re-using device. All storage devices or all ePHI records must be overwritten multiple times, in accordance with NIST guidelines. Device Controls and Re-Use §164.310(d)(2)(ii) - Re-Use §164.310(d)(1) - Controls

30. Disposal Compliance Practices ePHI on must be rendered unusable and/or inaccessible prior to disposal. When portable media is discarded, it should either be overwritten multiple times, in accordance with NIST guidelines. Maintain a record of where the hardware is, and the person responsible for it. §164.310(d)(2)(iii).

31. Accountability Practices for Compliance Identify types of hardware and electronic media that must be tracked. Create record / log to track where devices are. Portable devices should not ordinarily contain ePHI and must be individually identified in the tracking system in order to contain ePHI. Possession of portable device with ePHI must be consistent with the individual’s position. Inventory should be physically confirmed at least annually.

32. Data Backup and Storage Create a retrievable, exact copy of electronic protected health information, when needed, before movement of equipment. §164.310(d)(2)(iv) Establish a process for documenting or verifying its creation.

33. 4 Components of Compliant Technical P&P’s §164.312(a)(2)(iii) Automatic logoff procedures §164.312(a)(2)(i) Unique name / identifier to track users. §164.312(a)(2)(iv) Encryption and decryption procedures §164.312(a)(2)(ii) Emergency access procedures.

34. Step 1:User ID Unique account for each user including unique username and password if access to ePHI. Verification procedures P&Ps to map permissions Generic or shared accounts are not permitted for access to ePHI.

35. Step 2:Emergency Controls Protocol should be written Do not rely on availability of a single individual. Identify roles that may require special access during an emergency. Proper ID of individuals required Access to power or a network? If electronic systems are a copy of the medical record and access to the system is not necessary for safe patient care, use of medical records while the systems is unavailable is acceptable Do You Know What You Will Do If The Lights Go Out?

36. Step 3:Auto Logoff Compliance Practices Best practice: require electronic to be terminated. If terminating session isn’t possible, implement automatic workstation lockout as a compensating control. What’s an appropriate amount of inactivity before automatic lockout? 10 MINUTES

37. Step 4:Encryption Technical Standards HITECH references NIST encryption standards Enforce complex passwords where possible Protection from malicious software for details) Ensure secure remote access Implement correctly configured firewalls (hardware and/or software)

38. Step 4: Encryption – Decryption: P&Ps Unique user ID’s Frequent changes to ID’s Prohibit unencrypted ePHI will not be stored on portable electronic devices, including laptops. Remote wipe procedures Incorrect Password IT Personnel

39. Common Sense & Security Log off your system if you are not in front of it. Remove patient/resident/employee data from view. Make sure others cannot see your computer screen. Don’t place patient/resident/employee data on a flash drive, CD, diskette, or even your C: drive if you have PC. Don’t give anyone your password Any device /laptop used to store/transmit PHI must be encrypted – don’t store/transmit PHI on personal devices. “Secure” all PHI when sent outside of secure environment Emails Texts

40. Mobile Devices & Security • Enterprise issued mobile devices • Password protected • Encrypted • Remote monitoring • Remote wiping (destruction) • BYOD • Are they secure? • Dealing with physicians who insist on texting • Difference between sending and receiving • Education & Training - materials healthit.gov/providers-professionals/downloadable-materials

41. Risks Mobile Devices Mobile devices produced for consumer use. Can store massive amounts of data. Lack security and operational controls to enable management of the device from a centralized system. Easily lost or stolen and pose increased risks to the confidentiality and security of patient health information. Loss or theft may result in breach notification.

42. WHERE IS YOUR DATA?

43. A N D T H I S OR TH I S WHAT IS THIS? SAY HELLO TO YOUR DATA

44. ePHI & Text Messaging – P&Ps Appropriate use of work-related texting. Prohibiting texting of ePHI Requiring medical records be updated if ePHI received via text. Identifying retention period for any ePHI received via text. An inventory of all mobile devices used for texting ePHI (whether provider-owned or personal devices).

45. Device Ownership. BYOD Considerations Written authorization before storing ePHI. A clear definition of data ownership. Define what is acceptable use. Annual acknowledgment of organization P&Ps Reservation of rights to examine devices Procedures during employee or contractor separation

46. BYOD Policies To Consider • Appropriate use of texting • Appropriate use of camera and video • Appropriate use of sensitive information • Requirements for password protection and lock-out features. • Prohibition on altering factory defaults and operating systems (i.e., jail-breaking) • Appropriate use of applications and conditions of downloading software.

47. Technology Solutions for Mobile Devices Password protection and encryption for mobile devices that create, receive or maintain text messages with ePHI. Enterprise control to oversee communication use Enterprise control to wipe information from lost devices and/or separated employees Use of a secure messaging application. Audit trail system.

48. Security Assessment Exemplars

49. Event Management: Breach • Ready or not, expect there will be a breach

50. Risk Assessment: Breach • CE/BA should perform risk assessment post-breach discovery and must consider at least the following: • Nature and extent of PHI involved, including types of • Identifiers and likelihood of re-identification • Who was the recipient of the PHI • Was the PHI actually acquired or viewed • The extent to which the risk to misuse of the PHI has been • Mitigated