Tuesday, August 29, 2017

Where Is Your PHI Data Traveling Today?

Understanding "The Cloud" and it's regulatory relationship with HIPAA and PHI.

With most vendors offering and pushing cloud computing solutions and offsite data backup, or guaranteeing offsite backup of data they process for you, many HIPAA covered entities (CEs) and business associates (BAs) are questioning whether and how they can take advantage of cloud computing while complying with regulations protecting the privacy and security of electronic protected health information (ePHI). 

What "Cloud" computing means is that instead of all the computer hardware and software you're using sitting on your desktop, or somewhere inside your company's network, it's provided for you as a service by another company and accessed over the Internet, usually in a completely seamless way. Exactly where the hardware and software is located and how it all works doesn't matter to you, the user -- it's just somewhere up in the nebulous "cloud" that the Internet represents. 

The business decision to "move to the cloud" is often financially motivated. Companies used to have to buy their own hardware equipment, the value of which depreciated over time. But now with the cloud, companies only have to pay for what they use. This model makes it easy to quickly scale use up or down and to have data backed up for you as part of that provided service.

The rise of offshore IT services, including distributed storage, by cloud data providers creates issues that most healthcare providers have not yet realized. Even if some of the issues are realized, many covered entities and their business associates do not know where their data is currently being processed, stored, or backed up. In fact, storage or processing of protected health information (PHI) overseas may or may not be permitted or at least require additional resources, such as additional or more detailed risk assessments.

There are currently no federal regulations or statutes that prevent storing or processing PHI offshore or overseas; however, the Centers for Medicare and Medicaid Services (CMS), the U.S. Department of Health and Human Services (HHS), and the U.S. Office of Civil Rights (OCR) within the HHS, have all issued regulations or provided guidance that restrict storing or processing PHI offshore. In addition, there are four states that ban any Medicaid data from being stored or processed overseas (Arizona, Alaska, Ohio and Wisconsin), two more that only allow offshore contracts under extremely limited circumstances, and nine more that have specific requirements that must be met before any offshore processing or storage of Medicaid data is allowed. 

Even if a healthcare provider is not located in one of the above states, if the provider has treated a patient of those states, state regulators may argue that the healthcare provider must comply with their laws, regulations, and guidance, as applied to the resident of their state. Even more concerning is that even though Delaware does not have any laws or statutes banning offshore processing or data storage, Delaware recently started adding provisions to all of their contracts (similar to Wisconsin) that the State (Delaware) will not permit project work to be done offshore. There may be additional states adding these prohibitions to their contracts in the future.
If extra regulatory burden and potential state law bans were not enough by themselves, any PHI stored offshore likely will be subject to local law of the country in which it is stored. Furthermore, these local laws may allow for actions or even access to the data that directly conflicts with requirements on healthcare providers under HIPAA/HITECH, even if the vendor signed a Business Associate Agreement (BAA). Due to the issues in enforcing HIPAA and HITECH, and even a BAA against an overseas vendor, HHS has basically stated that it is the duty of the healthcare provider or vendor for deciding how to vet data services vendors and comply with expected additional requirements when conducting a risk assessment on overseas providers. 
At this point, most healthcare providers question if any offshore or offsite data storage or processing is worth any potential cost savings, or if OCR has any further guidance. In the fall of 2016, OCR prepared guidance that explained how federal health information privacy and data security rules apply to cloud services. In summary, this guidance helped data service companies, but at the expense of covered entities by primarily placing the burden on the covered entities, specifically hospitals, insurers, doctors, and other healthcare providers.

In looking at data service vendors, OCR decided that data service subcontractors of the covered entities’ business associates are actually business associations of the business associates. According to the OCR, covered entities must assess the cloud services providers’ or offshore providers’ data security efforts, but HIPAA does not require the cloud services providers to allow covered entities audit them. As such, covered entities are required to determine how well a cloud services provider handles system reliability, data security, and data backup and recovery, without the ability to perform an audit. While this is problematic when dealing with domestic cloud service providers, it creates additional issues when dealing with overseas cloud service providers. 
While OCR allows use of overseas providers, as of right now the rules of HIPAA and HITECH fail to address any international aspects, leaving no requirements but also no protections for covered entities. If you select a domestic provider, the laws and regulations regarding PHI apply to both parties, but if an overseas provider is selected, HIPAA and HITECH will not apply, unless they contractually agreed to comply with such laws and regulations. If there is a breach and the overseas provider refuses to defend against or pay any fines or fees levied related to the breach, the covered entity may be liable for paying. It is also important to note that while an international provider may agree to sign a BAA, many international providers do not understand the requirements of HIPAA and HITECH, while most domestic providers have a greater understanding.
Even if you know where the company with whom you are contracting is located, do you know where they send the backup data? Do they send data for processing or backup to other agents, subcontractors, vendors, or other data providers overseas? You may not realize your data is regularly taking international trips, and may be better traveled than you are. In addition, if a relationship is terminated with an international provider, how will you ensure that the data is wiped from the system? Healthcare providers generally must require a certificate of destruction when terminating data services, and will you be able to comply with this provision with an offshore provider?
In contracting with cloud service providers, including backup providers, e-mail providers, and other processing entities, covered entities and their business associates must determine where their data is located, and if it is offshore, they must analyze if any of the information is prohibited from being exported by any state or local regulations. If not, next it must be determined if there is an extra compliance burden associated with the data being offshore, and if that extra compliance burden and the associated risk of being offshore are worth any cost savings by using the offshore provider. If an entity knows that some of its data may be banned from being exported overseas, or would raise too much risk or compliance burden, then language banning such exports should be placed in the agreements, including any BAAs. 
 HCSI

Used with permission from: Craig A. Phillips council member of Dickinson Wright
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Thursday, August 10, 2017

Six Ways to Improve Data Security at Your Practice

A married couple — both doctors who shared a medical practice — almost divorced over a HIPAA breach that blindsided them when a patient called to say that her medical records appeared in a Google search and she was filing a lawsuit.

The orthopedist of a small practice didn’t want to fund the cost of an IT service provider to make sure his network was secure.  Instead the doctor hired his cousin who earned his IT stripes fixing performance problems on his own laptop.  Unfortunately, the family member never updated the practice’s malware software and patient data ended up on a rogue server.  Now it’s being held for ransom. 

The Smaller the Practice the Less the Compliance

For medical practices with 20 or less employees, doctors are often reluctant to spend money on HIPAA security than larger practices.  Importantly, the latter will have a compliance officer who makes sure HIPAA rules are followed, employees are trained, and policies and procedures are up to date. 

Doctors running small practices don’t believe they’re at risk for a data breach so they ignore the same steps taken by the compliance officer.  Meanwhile, it’s ordinary human errors that could take down the practice.  An employee leaves his tablet in a taxi or thieves break into the office and steal two laptops that contain patient records.  Or the doctor loses his laptop and keeps it under wraps since he thinks he hasn’t stored any patient records on it, so no one needs to know.  However, a disgruntled employee who was terminated gets revenge by reporting the practice to the Department of Health and Human Services’ Office of Civil Rights (OCR).  The OCR accuses the practice of having a breach and hiding it, and calls for an investigation. 

These are all real world events that have sent medical practices into a tailspin.  Doctors call a HIPAA compliance expert in a panic because they’re now caught in the web of the OCR and scrambling to prepare for an audit.  Worse yet, these compliance risks were right under their noses.

The Practice Needs As Much Care As the Patients

The risk of a data breach can be as life threatening to the practice that doesn’t protect its data, as the risk of lung cancer is for the patient who chain smokes.  Think of a data breach as a disease and the stolen laptop causing pain and suffering, and eventual death, which could all be prevented.  Doctors should think about data breach prevention and care for their businesses with the same commitment to disease prevention and care for their patients. 

When a practice fails to perform a security risk assessment or ensure that his employees used strong passwords, not long after he is convincing OCR auditors that the breach was an accident.  He has to hire attorneys to complete the audit and there is no budget left to invest in more network security, or cyber insurance. 

HIPAA Compliance Made Easy for Small Practices

There are some simple steps small practices can take that will take far less time than preparing for an OCR audit:

- Perform a security risk analysis — Analyze how patient information is currently protected. How often does the practice perform data backups? Is there a termination procedure when an employee leaves? Do employees have the minimum level of access to patient information? Are all portable devices encrypted?  Are medical records protected in case of fire or flood, or lost or stolen laptops that contain patient information?

- Train employees — Make sure they know how to spot phishing scams and suspicious links in emails, recognize fraudulent “IT experts” who call in to upgrade an operating system.  They should also know to avoid conducting business on public Wifi, and minimize sharing on social networks.

- Inventory patient information — Locate where all patient information is stored. It could be an EHR or a word document in the form of patient letters, or excel spreadsheets as billing reports or scanned images of your insurance carrier’s explanation of benefits (EOB).  This information resides on desktops, laptops and mobile devices, and should be encrypted.

- Employee data theft — Employee theft of information is one of the leading causes of HIPAA breaches in small organizations.  An employee steals patient information and opens a charge account at a local department store.  The patient finds out and sues the practice for not protecting her electronic protected health information (ePHI).  Employees should have minimal access to EHRs — only the information they need to perform their duties.   Also data logs should be checked.

- Breach Response Plan — Is there a response plan in place in case a breach does occur? The plan should include who will be on the response team, what actions the team will take to address the breach, and what steps they’ll take to prevent another similar breach from occurring. Make sure the plan is documented and all employees are trained on what they need to do.

These few actions can make the difference between being sued by patients for a data breach and gaining their confidence that their doctor cares as much about their health as he does for their security.

Source(s): https://www.hcsiinc.comhttp://www.physicianspractice.com

For more information on this and other healthcare compliance topics related to HIPAA, OSHA, Medicare and HR, simply email your questions to support@hcsiinc.com
visit our website at http://www.hcsiinc.com or post a question on our LinkedIn group at: http://bit.ly/1FWmtq6

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