Figuring out the details of whether your business is in compliance with HIPAA is an ongoing challenge. At our last HIPAA related Lunch & Learn event, several of our attendees were looking for information on how HIPAA will be conducting its latest phase of audits – how businesses will be selected to be audited (particularly business associates), when the different types of audits will be conducted, and more. Here are some of the latest answers from the Health and Human Services Office for Civil Rights

HIPAA Compliance – FAQs and the Audit Protocol

The OCR’s website offers some helpful definitions and answers to frequently asked questions concerning the audit process. A few important highlights include:

• Timing for audits – The Health and Human Services Office for Civil Rights (OCR) began audits for Phase 2 of the HIPAA Audit Program back in March 21, 2016. The OCR states that “Phase 2 is currently underway. Selected covered entities [CE] received notification letters July 11, 2016. Business associate [BA] audits will start in the fall.” The OCR also warns businesses to double check that the emails are not blocked by any spam filters.

• Basis for selecting those who will be audited – The OCR states that for Phase 2, they are “identifying pools of CEs and BAs that represent a wide range of health care providers, health plans, health care clearinghouses, and business associates.” Their plan is to examine a broad spectrum of candidates to allow them to better understand the state of HIPAA compliance across the industry.

As far as BAs go, the OCR will be asking CEs who are being audited “to identify their business associates.” They encourage CEs “to prepare a list of each business associate with contact information so that they are able to respond to this request.”

• Different sets of audits – The OCR’s first set of audits will be desk audits of CEs, followed by a second set of desk audits of BAs. The third set of audits will be onsite, with some desk auditees being subjected to onsite audits. (You can take a look at the OCR 2016 HIPAA Desk Audit Guidance on Selected Protocol Elements for additional details.)

You can also take a look at the actual audit protocol along with some definitions of terms at the OCR’s website. This lengthy table breaks down the audit protocol according to Audit Type, Section, Key Activity, Established Performance Criteria, and the Audit Inquiry.

The HIPAA Audit Program

On March 21, 2016, the Department of Health and Human Services, Office for Civil Rights (OCR) launched Phase 2 of its HIPAA Audit Program. This phase of the audit program, “…will review the policies and procedures adopted and employed by covered entities and their business associates to meet selected standards and implementation specifications of the Privacy, Security, and Breach Notification Rules.”

According to the OCR, the number of audits done in this phase will be relatively small. This  smaller number of audits reflects the OCR’s primary goal of better understanding the compliance efforts of covered entities and their business associates. The audit results will hopefully provide information to help them to determine what support is necessary for successful compliance.

This could be good news for companies that experience an audit; while the OCR maintains the option to initiate a compliance review in the case of egregious compliance issues, it will probably not be focusing primarily on enforcement actions.

HIPAA’s Privacy Requirements vs. the Spread of Social Media

How to maintain patients’ privacy in the face of widespread social media use is an ongoing challenge. With privacy rules that were originally written in 2000, then updated only once in 2009, it’s no wonder that HIPAA is lagging behind the rapid pace of technological change.

Although current regulations don’t completely cover the changing technological landscape, there are some common sense steps businesses can take to protect themselves. A good practice is to carefully remove all identifiers from PHI if it must be shared without the patient’s prior consent.

But be warned: modern search engines mean that surprisingly small amounts of information can unexpectedly be enough to identify patients. This means even a seemingly vague post on a site like Facebook could contain enough information to identify a patient, leading to liability concerns for the poster and their employer. Examples in the past few years include a Rhode Island physician who lost her privileges to work in the Emergency Room and faced a monetary fine for posting information online about a trauma patient. According to a Boston Globe article, “… [the] posting did not include the patient’s name, but… enough that others in the community could identify the patient.”

Your company will need to have clear, well-planned policies regarding social media use and will need to be certain that all employees have been made aware of these policies.

If you’d like to learn more about how HIPAA compliance affects your business, Aperio will be holding a Lunch & Learn Event on Wednesday, June 8. Brian Olsen, HIPAA Security Advisor, will be joining us to help answer your concerns about HIPAA regulations.

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Additional information on HIPAA:

• For a detailed look at dealing with Protected Health Information online, read The Hospitalist’s article on avoiding data breaches and HIPAA violations when posting online.
• For a basic introduction to what the Health Insurance Portability and Accountability Act is, you can check out our previous blog post “What Does HIPAA Mean?”
• To learn more about what your IT team will face when dealing with HIPAA compliance, take a look at our blog post “What Does Your IT Team Need to Know about HIPAA Compliance?”

(Part 3 in our series on IT Compliance Concerns.)

What company types are affected by HIPAA compliance?

What is the Health Insurance Portability and Accountability (HIPAA) Act?
In the first two parts of this series, we discussed the Sarbanes-Oxley (Sarbox or SOX) Act and what it means in terms of Information Technology concerns. In this article, we’ll look into what  the Health Insurance Portability and Accountability Act is, and what it means to your company.

Enacted in 1996, the main purpose of the Health Insurance Portability and Accountability Act (also known as HIPAA or the Kennedy-Kassebaum Act) is to make it easier for people to keep health insurance, maintain the confidentiality and security of their healthcare information, and to control healthcare administrative costs. Title I of HIPAA is concerned with protecting health insurance coverage of workers and their families when they change or lose their jobs; Title II requires the establishment of national standards for electronic health care transactions and the establishment of national identifiers for providers, health insurance plans, and employers. (Title II is also referred to as the Administrative Simplification, or AS, provisions.)

What company types are affected by HIPAA compliance?
Covered entities and their business associates are the entities primarily affected by HIPAA.

Under HIPAA, there are three types of covered entities: health care providers, health plans, and health care clearing houses.
●    Examples of health care providers include hospitals, clinics, medical and dental practices, nursing homes, hospices, and pharmacies.
●    Health plans can include HMOs and employee-sponsored health plans.
●    Health care clearinghouses include entities that transmit claims or billing information.

Companies that provide services for covered entities and handle Protected Health Information (also known as Personal Health Information or PHI) can be considered business associates under HIPAA. While it is not always easy to determine if a company is considered a business associate, typical examples can include accounting firms, law firms, consultants, software vendors, ISPs, and cloud storage companies. If such a company works with covered entities, their contracts with those covered entities may require them to be compliant with HIPAA.

What are the penalties for failing to comply with HIPAA?
Penalties for covered entities include monetary fines of $1,000 per violation up to an annual maximum of $25,000. These fines are not the only concern; for criminal violations, the fines can be as high as $250,000 and may include up to ten years in prison. And while business associates cannot be prosecuted under HIPAA, they may still face certain penalties. A violation of a business agreement with a covered entity might lead to termination of contracts, and could lead to the risk of civil lawsuits filed by harmed individuals.

How does the HIPAA Privacy Rule work?
Covered entities and business associates are subject to the HIPAA Privacy Rule, which concerns the use and disclosure of PHI. Types of information covered by this rule include name, address, date of birth, Social Security number, any other information that can be used to identify a patient. It also includes information about: a patient’s past, present, or future health condition; the provision of health care to the patient; the past, present, or future payment for the provision of health care to a patient.

All of these requirements naturally mean challenges for your IT department. We will discuss these in the next part of our series on IT compliance concerns.)

Coming soon: Part 4 in our series on IT Compliance Concerns, “What Does My IT Team Need to Know About HIPAA Compliance?”

To learn more about HIPAA and related issues:

●    How companies are (and are not) allowed to use PHI (Protected Health Information).
●    Additional details concerning business associates and subcontractors.

Other posts in this series:
●    Part 1: Making Sure Your Business is SOX Compliant
●    Part 2: SOX Compliance and Your IT Team