As the healthcare sector continues to be a top target for cyber criminals, the Office for Civil Rights (OCR) issued proposed updates to the HIPAA Security Rule (scheduled to be published in the Federal Register January 6). It looks like substantial changes are in store for covered entities and business associates alike, including healthcare providers, health plans, and their business associates.
According to the OCR, cyberattacks against the U.S. health care and public health sectors continue to grow and threaten the provision of health care, the payment for health care, and the privacy of patients and others. In 2023, the OCR has reported that over 167 million people were affected by large breaches of health information, a 1002% increase from 2018. Further, seventy nine percent of the large breaches reported to the OCR in 2023 were caused by hacking. Since 2019, large breaches caused by successful hacking and ransomware attacks have increased 89% and 102%.
The proposed Security Rule changes are numerous and include some of the following items:
- All Security Rule policies, procedures, plans, and analyses will need to be in writing.
- Create, maintain a technology asset inventory and network map that illustrates the movement of ePHI throughout the regulated entity’s information systems on an ongoing basis, but at least once every 12 months.
- More specificity needed for risk analysis. For example, risk assessments must be in writing and include action items such as identification of all reasonably anticipated threats to ePHI confidentiality, integrity, and availability and potential vulnerabilities to information systems.
- 24 hour notice to regulated entities when a workforce member’s access to ePHI or certain information systems is changed or terminated.
- Stronger incident response procedures, including: (I) written procedures to restore the loss of certain relevant information systems and data within 72 hours, (II) written security incident response plans and procedures, including testing and revising plans.
- Conduct compliance audit every 12 months.
- Business associates to verify Security Rule compliance to covered entities by a subject matter expert at least once every 12 months.
- Require encryption of ePHI at rest and in transit, with limited exceptions.
- New express requirements would include: (I) deploying anti-malware protection, and (II) removing extraneous software from relevant electronic information systems.
- Require the use of multi-factor authentication, with limited exceptions.
- Require review and testing of the effectiveness of certain security measures at least once every 12 months.
- Business associates to notify covered entities upon activation of their contingency plans without unreasonable delay, but no later than 24 hours after activation.
- Group health plans must include in plan documents certain requirements for plan sponsors: comply with the Security Rule; ensure that any agent to whom they provide ePHI agrees to implement the administrative, physical, and technical safeguards of the Security Rule; and notify their group health plans upon activation of their contingency plans without unreasonable delay, but no later than 24 hours after activation.
After reviewing the proposed changes, concerned stakeholders may submit comments to OCR for consideration within 60 days after January 6, by following the instructions outlined in the proposed rule. We support clients with respect to developing and submitting comments they wish to communicate to help shape the final rule, as well as complying with the requirements under the rule once made final.