New HIPAA Guidance Sheds Light on Existing Rules

by Roetzel & Andress
Contact

Recently, regulators issued new guidance related to the Health Insurance Portability and Accountability Act (“HIPAA”), Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996. Specifically, on October 6, 2016, the Department of Health and Human Services (“HHS”) issued “Guidance on HIPAA & Cloud Computing.” While this publication created no new obligations for those subject to HIPAA, it clarified existing obligations and expectations to remain HIPAA-compliant.

Use of the “cloud” has become a common method of storing and transmitting electronic information. In the health care industry, the cloud is often used to store data designated as electronic protected health information (“ePHI”) under HIPAA through third-party cloud providers. Until the published HHS guidance, there was no general consensus on the HIPAA obligations (if any) of the cloud provider that simply provided no services other than acting as a repository for ePHI.  

Notable information from the new guidance includes the following:

1.  A cloud provider is deemed to be a business associate under HIPAA even if it only stores ePHI. Accordingly, health care providers must enter into HIPAA-compliant Business Associate Agreements with cloud providers prior to transferring any ePHI. Additionally, if a cloud provider subcontracts with another cloud provider (a subcontractor) related to the use or transmission of ePHI on behalf of the business associate, the subcontractor is deemed a business associate as well. This is true even if the ePHI stored is encrypted and the cloud provider does not hold the “key” to unlock the encryption. Clear designation as a business associate requires the cloud provider to comply with many aspects of HIPAA, including its Privacy Rules, Security Rules, and Breach Notification Rules.

2.  ePHI in the cloud can be accessed through the use of mobile devices, as long as the appropriate physical, technical, and administrative safeguards are in place to protect the confidentiality and integrity of the ePHI.

3.  ePHI can be stored by a cloud provider who maintains servers outside the United States, but providers should understand the potential for increased security risks in this scenario.

4.  A cloud provider will not be deemed a business associate if it only stores “de-identified” information (as that term is used under HIPAA).

5.  Not having a business associate agreement in place with a cloud provider can be costly. HHS specifically noted a case that settled in July 2016 for $2,700,000. In that matter, a large health care provider was storing ePHI on a cloud-based system and did not maintain a Business Associate Agreement with the cloud provider. After reporting a breach incident, the Office of Civil Rights (the federal agency charged with HIPAA enforcement) conducted an investigation, finding evidence of widespread vulnerabilities with the health care provider’s HIPAA compliance program, “including the storage of the electronic protected health information (ePHI) of over 3,000 individuals on a cloud-based server without a Business Associate Agreement.”

This guidance comes at a time of increased audits and review by regulators of providers’ HIPAA policies and procedures. While many providers believe that HIPAA impacts only their ability to disclose a patient’s medical records, amendments and additional laws enacted over the past few years have expanded HIPAA’s reach and increased the responsibilities for covered entities and business associates. If you have not (1) reviewed and revised your HIPAA policies and procedures in the last two years; and/or (2) conducted a HIPAA risk assessment and risk mitigation plan in the last year, you likely are not in compliance with current HIPAA requirements. We urge you to contact the listed Roetzel attorneys to discuss your practice’s obligations and HIPAA compliance objectives.

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.

© Roetzel & Andress | Attorney Advertising

Written by:

Roetzel & Andress
Contact
more
less

Roetzel & Andress on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.