$4.8 Million – Largest HIPAA Settlement to Date

by Davis Wright Tremaine LLP
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On May 7, 2014, the U.S. Department of Health and Human Services, Office for Civil Rights (“OCR”) issued a press release announcing that two health care organizations—New York and Presbyterian Hospital (“NYP”) and Columbia University (“CU”)—agreed to resolve charges that they potentially violated the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) privacy and security rules by failing to secure thousands of patients’ electronic protected health information (“ePHI”) on their network. The monetary payments total $4.8 million, which is the largest HIPAA settlement to date. This settlement suggests that OCR is increasing its settlement amounts and expects entities to know where their ePHI is located and how it is being accessed.

Background
NYP and CU are separate covered entities affiliated as “New York-Presbyterian Hospital/Columbia University Medical Center.” NYP and CU operate a shared data network and a shared network firewall that is administered by employees of both entities. The shared network links to NYP patient information systems containing ePHI.

On Sept. 27, 2010, OCR received a joint breach report from NYP and CU indicating that the information of 6,800 individuals, including patient status, vital signs, medications, and laboratory results, had been accessible to Google and other Internet search engines. The entities learned of the breach after receiving a complaint by an individual who found the ePHI of the individual’s deceased partner, a former patient of NYP, on the Internet.

An investigation by OCR revealed that the breach was caused when a CU physician who developed applications for both NYP and CU attempted to deactivate a personally owned computer server on the network containing NYP patient ePHI. “Because of a lack of technical safeguards, deactivation of the server resulted in ePHI being accessible on Internet search engines,” according to OCR’s press release.

In addition to the impermissible disclosure of ePHI on the Internet, OCR alleged:

  • Neither NYP nor CU made efforts prior to the breach to assure that the server was secure and that it contained appropriate software protections.
  • Neither NYP nor CU had conducted an accurate and thorough risk analysis that incorporated all IT equipment, applications, and data systems utilizing ePHI.
  • Neither NYP nor CU had developed an adequate risk management plan that addressed the potential threats and hazards to the security of ePHI.
  • NYP failed to implement appropriate policies and procedures for authorizing access to its databases and failed to comply with its own policies on information access management.

Christina Heide, acting deputy director of health information privacy for OCR, emphasized that: “When entities participate in joint compliance arrangements, they share the burden of addressing the risks to protected health information. Our cases against NYP and CU should remind health care organizations of the need to make data security central to how they manage their information systems.”

End result
NYP paid the lion’s share of the settlement amount—$3.3 million, with CU agreeing to pay $1.5 million—totaling $4.8 million. Additionally, both entities agreed to a substantive three-year corrective action plan, which includes undertaking a risk analysis, developing a risk management plan, revising policies and procedures, training staff, and providing progress reports.

Tips, trends, and take-aways

  • Entities subject to HIPAA should conduct and document a thorough risk analysis and risk management plan.
  • As part of the risk analysis, entities should know where their ePHI is and how ePHI is accessed.
  • Entities should review server configurations and make sure appropriate safeguards are in place.
  • It is unclear why the amount was so large; however, there continues to be a trend of larger settlement amounts for larger-sized entities. Smaller entities with seemingly far more egregious conduct have settled for far less in recent years.
  • The initial breach was reported in 2010, demonstrating that it can take more than three years before OCR ultimately resolves a reported breach.
  • NYP got hit with the larger settlement amount, while the breach occurred due to the actions of a CU employee. OCR appears to put more blame on NYP for not controlling how its health information was accessed, rather than the covered entity that accessed the information. This sort of precedent can have a chilling effect on health care providers’ willingness to participate in government-backed health information exchange efforts, where the health care providers are being asked to allow far greater access to their health information by third parties.
  • Even though the total settlement amount was the largest to date, OCR continued its trend of no longer seeking independent monitoring, which can add substantial additional cost to a resolution.
  • To date, there have been 985 reports of breaches of unsecured protected health information affecting 500 or more individuals posted to the HHS' website. Only a small number (65) have summaries, which may suggest that most reported breaches have not yet been resolved. Accordingly, there may be many more large settlements to come from other older breach cases.

Additional resources

The New York and Presbyterian Hospital Resolution Agreement: http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/ny-and-presbyterian-hospital-settlement-agreement.pdf

The Columbia University Resolution Agreement: http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/columbia-university-resolution-agreement.pdf

Basics of HIPAA Security Risk Analysis and Risk Management and Compliance Tips: http://www.hhs.gov/ocr/privacy/hipaa/understanding/training

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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