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OCR Responds To Critical OIG Report About the Extent of OCR’s HIPAA Enforcement

By Joseph J. Lazzarotti & Michael R. Bertoncini on December 30, 2013
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A report issued by the Department of Health and Human Services Office of Inspector General (“OIG”) concludes that the Office for Civil Rights (“OCR”) did not meet all of its federal requirements for oversight and enforcement of the HIPAA Security Rule. While the report noted OCR met some of these requirements, it also found that:

  • OCR had not assessed the risks, established priorities, or implemented controls for its HITECH requirement to provide for periodic audits of covered entities to ensure their compliance with Security Rule requirements.
  • OCR’s Security Rule investigation files did not contain required documentation supporting key decisions because its staff did not consistently follow OCR investigation procedures by sufficiently reviewing investigation case documentation.

OIG also found that OCR had not fully complied with Federal cybersecurity requirements for its information systems used to process and store investigation data. The report recommended that OCR:

  • assess the risks, establish priorities, and implement controls for its HITECH auditing requirements;
  • provide for periodic audits in accordance with HITECH to ensure Security Rule compliance at covered entities;
  • implement sufficient controls, including supervisory review and documentation retention, to ensure policies and procedures for Security Rule investigations are followed; and
  • implement the NIST Risk Management Framework for systems used to oversee and enforce the Security Rule.

OCR’s Response. In its response to OIG’s findings, attached as an appendix to the report, OCR generally concurred with OIG’s recommendations and described actions it has taken to address them. OCR’s response to the report provides valuable information to companies as they develop their HIPAA compliance programs, including:

  • From 2008 through 2012, OCR obtained corrective action from covered entities in more than 13,000 cases where they found noncompliance with HIPAA and reached resolution agreements in 11 cases with payments totaling approximately $10 million.
  • The findings from the pilot audits OCR ran in 2012 indicate that covered entities generally have more difficulty complying with the Security Rule than other aspects of HIPAA and that small covered entities struggle with HIPAA compliance in each of the assessment areas – privacy, security and breach notification.
  • Future audits “are less likely to be broad assessments generally across the Rules and more likely to focus on key areas of concern for OCR identified by new initiatives, enforcement concerns, and Departmental priorities.”

OCR’s response also noted that no monies have been appropriated for a permanent audit program. However, covered entities and business associates should not see this lack of funding for a permanent audit program as giving them a pass on HIPAA compliance. The report makes clear that OCR must find a way to meet its audit requirements under HIPAA.

OCR’s recent enforcement activity also demonstrates a commitment to holding companies accountable under HIPAA. In 2013 (through December 20), OCR reached five resolution agreements with payments totaling approximately $3.7 million. These figures from a single calendar year represent nearly half the total number of resolution agreements and payments that OCR obtained over the five-year period from 2008 through 2012.

In this enforcement environment, it is imperative that covered entities and business associates regularly review their HIPAA compliance program and implement ongoing HIPAA training for their employees.

Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.

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Photo of Michael R. Bertoncini Michael R. Bertoncini

Michael R. Bertoncini is a principal in the Boston, Massachusetts, office of Jackson Lewis. He is a member of the Healthcare industry group and a member of the Higher Education group.

With a background as a former Deputy General Counsel, Michael understands first-hand…

Michael R. Bertoncini is a principal in the Boston, Massachusetts, office of Jackson Lewis. He is a member of the Healthcare industry group and a member of the Higher Education group.

With a background as a former Deputy General Counsel, Michael understands first-hand the competing demands and unique challenges faced by in-house counsel. Before joining Jackson Lewis, he was responsible for all labor and employment law matters for the largest fully integrated community care hospital system in New England. Michael provides timely, practical advice that helps clients achieve their strategic goals while ensuring compliance with legal obligations.

With deep experience in a broad range of industries, Michael has a keen interest in the healthcare, higher education, museum, and arts & music sectors. He is dedicated to supporting clients in these areas, leveraging his extensive experience to address the specific challenges faced by institutions and organizations in these fields.

Michael regularly partners with clients to establish positive employee relations. In labor relations matters, he negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with respect to rights and obligations under collective bargaining agreements and applicable labor and employment laws. He also has extensive experience in advising organizations responding to corporate campaigns and negotiating neutrality agreements.

Michael’s privacy and data security practice focuses on advising clients on complying with HIPAA and other state and federal privacy and data security laws. He reviews and develops policies and procedures, written information security plans and integrated compliance programs to ensure his clients meet their obligations under privacy and data security laws. Michael represents clients in investigations of alleged data breaches and advises them on reporting obligations.. He also conducts workplace training programs on HIPAA compliance and related privacy and data security topics.

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  • Posted in:
    Health Care and Life Sciences, Privacy and Cybersecurity
  • Blog:
    Workplace Privacy, Data Management & Security Report
  • Organization:
    Jackson Lewis P.C.
  • Article: View Original Source

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