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HIPAA Enforcement In 2018 Hits All Time High

By Daniel J. Kagan on February 8, 2019
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Privacy and cybersecurity is at the forefront of everyone’s mind these days and, in 2018, the Office for Civil Rights (“OCR”) settled ten cases and prevailed in another before an Administrative Law Judge to the tune of $28,700,000. This is a new record for OCR, besting 2016 by over $5,000,000. The latest settlement clocked in at $3,000,000, owed by a health system in California that experienced two breaches of electronic protected health information (“ePHI”), which affected 62,500 individuals.  The first breach involved a security configuration where persons could access files with ePHI without a username or password, thereby making ePHI available to anyone with access to the health system’s server.  The second breach involved a server misconfiguration, exposing the health system’s ePHI over the internet, including social security numbers and treatment information.

In its investigation, OCR uncovered that the health system: (1) failed to conduct a thorough security assessment of the potential risks and vulnerabilities to the confidentiality, integrity and availability of the ePHI maintained on its system; (2) failed to perform technical and non-technical evaluations in response to environmental or operational changes affecting the ePHI; and (3) failed to obtain a written business associate agreement with a contractor that maintained ePHI for it.

There are a couple of takeaways from this latest OCR settlement.  First, all covered entities should ensure that they have conducted a recent security assessment of their systems, to identify and understand the risks and vulnerabilities to ePHI.  Covered entities need to conduct these security assessments periodically, especially as entities make changes to their computer systems and vendors, including their electronic health record systems.  Second, all covered entities should conduct a business associate audit, examining their vendor contracts and ensuring that a business associate agreement is in place with any vendor that will receive, maintain, or transmit PHI or ePHI on behalf of the covered entity.

Photo of Daniel J. Kagan Daniel J. Kagan

Dan Kagan is an Associate in the Health Care, Long Term Care and Privacy and Cybersecurity Groups. He represents hospitals, physicians, nursing homes, assisted living communities, CCRCs and other health care clients with a wide range of regulatory, compliance, risk management, transactional and…

Dan Kagan is an Associate in the Health Care, Long Term Care and Privacy and Cybersecurity Groups. He represents hospitals, physicians, nursing homes, assisted living communities, CCRCs and other health care clients with a wide range of regulatory, compliance, risk management, transactional and reimbursement issues.

With regard to Privacy and Cybersecurity, Dan has experience drafting privacy policies and notices, website terms of use, written information security plans and incident response plans.  Dan counsels clients on compliance issues related to state, federal and international privacy laws including the General Data Protection Regulation (GDPR).  Dan also has experience representing both health care and non-health care clients that have suffered data breaches and assists such clients with breach response and applicable reporting obligations.  Dan writes extensively on privacy and cybersecurity issues and is a co-editor of Murtha’s Privacy and Cybersecurity Perspectives blog.

As a member of the Health Care and Long Term Care groups, Dan has experience representing clients with HIPAA compliance, Stark and anti-kickback analyses, purchase and sale transactions, reviewing and drafting contracts, certificate of need requirements, rate appeals, Medicare and Medicaid audits, medical staff and credentialing matters, licensing and change of ownership proceedings.

Prior to joining Murtha Cullina, Dan clerked for the Honorable Lubbie Harper, Jr. and the Honorable Joseph H. Pellegrino of the Connecticut Appellate Court.

Dan received his J.D. with honors from the University of Connecticut School of Law where he was a Notes and Comments Editor for the Connecticut Insurance Law Journal. He earned his Bachelor of Arts in Economics from McGill University.

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  • Posted in:
    Privacy and Cybersecurity
  • Blog:
    Privacy and Cybersecurity Perspectives
  • Organization:
    Murtha Cullina LLP
  • Article: View Original Source

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