HIPAA violations refer to the failure to adhere to regulations set out by HIPAA, primarily involving the unauthorized use, access, or disclosure of protected health information (PHI), which can occur due to numerous reasons such as insufficient training, improper handling or disposal of PHI, failure to perform regular risk assessments, lack of patient access to their medical records, unauthorized release of information, and failure to establish or implement appropriate administrative, physical, and technical safeguards. HIPAA violation lawsuits refer to legal actions taken by individuals or entities against healthcare providers or their associates for alleged breaches of the HIPAA regulations, particularly those relating to the unauthorized use, disclosure, or access to protected health information (PHI).
Why Do We Need HIPAA?
HIPAA is an important piece of legislation and serves a number of purposes: it regulated for continuation of health insurance coverage for individuals who may be between jobs, as well as for their families; it introduced mandatory security and privacy requirements to protect patients’ data; it helped create standardized codes and identification numbers to streamline administration between healthcare entities; and it increased transparency by allowing patients to request copies of their own protected health information (PHI).
Any one of these reasons should be a good enough argument for why we need HIPAA. The fact that HIPAA and its related laws provide so many benefits for both patients and healthcare organizations as a complete package just increases its importance. Violating HIPAA can lead to medical errors, administrative confusion, time-wasting, and loss of trust.
Common HIPAA Violations
Device-Related Violations
One of the common types of HIPAA violations is associated with the loss or theft of electronic devices that contain or provide access to protected health information (PHI). If the lost or stolen device had unencrypted PHI or lacked adequate access controls to prevent unauthorized individuals from accessing the data, it could result in a serious violation. Given the interconnected nature of digital data and cloud storage services, the loss or theft of a single device could compromise the PHI of thousands or even hundreds of thousands of individuals.
Improper Disposal
Disposing of PHI can present unique challenges. Physical copies of PHI can’t be discarded with ordinary waste as this exposes them to potential access by the public or unauthorized individuals. Such physical PHI must be securely destroyed, often by shredding or incineration, rendering the information unreadable. Disposal of electronic PHI is even more complicated. Merely deleting a file from a storage device might still leave residual or cached copies of the file. The preferred method is to magnetically wipe the entire disk or incinerate it.
Data Breaches
Another frequent type of HIPAA violation involves unauthorized access or hacking into network systems. If a committed group or individual targets IT infrastructure or servers, it might be challenging to prevent these attacks. On a smaller scale, the use of unsecured Wi-Fi networks or wireless signals with inadequate protections, like telephone SMS networks, could lead to easy interception and storage of transmitted data by passive devices or telecom network servers, resulting in a breach of HIPAA regulations.
Inquisitive Employees
Even with rigorous training and established policies, curiosity-driven breaches of HIPAA rules by staff members occur when they access records without valid reasons. While some instances might be accidental, many cases involve employees accessing the PHI of relatives or acquaintances out of sheer curiosity. Such actions should be strictly discouraged and penalized by employers.
Spread of Gossip
Similar to curiosity-driven violations, gossip by healthcare employees involving the sharing of PHI details with unauthorized individuals is a significant issue. PHI should not be a topic of gossip, and any dissemination of PHI should comply with the Minimum Necessary Rule, which stipulates that only the minimum amount of information needed to perform the task should be shared.
Lack of Training
Often, HIPAA violations occur due to insufficient employee training on HIPAA compliance. Not understanding the implications and requirements of HIPAA can result in accidental breaches. Employees might mishandle PHI, fail to adequately secure health records, or might not be aware of the correct procedures for sharing PHI. Regular, thorough training is necessary to prevent these types of violations.
Third-Party Disclosures
Sharing PHI with third-party vendors without an appropriate business associate agreement (BAA) is another common violation. HIPAA regulations require that any third-party, or business associate, that has access to PHI must have a signed BAA, outlining their responsibility to protect the data. Skipping this crucial step can lead to significant breaches and penalties.
Improper Storage Practices
PHI must be stored securely, whether in paper or electronic form, to prevent unauthorized access. However, improper storage practices often lead to HIPAA violations. This can include leaving files containing PHI in publicly accessible areas, not properly securing medical records rooms, or failing to encrypt electronic records.
Non-compliant Mobile Use
The use of mobile devices for communicating PHI is widespread in the healthcare industry. However, these devices can often become a source of HIPAA violations if not properly managed. This can happen when unsecured messaging applications are used for communication, mobile devices containing PHI are lost or stolen, or if devices are left unattended and unlocked.
Insufficient Patient Access
Under HIPAA, patients have the right to access their health records. A common violation is failing to provide patients with access to their PHI within the required timeframe (usually 30 days). Also, overcharging for these copies can be considered a violation.
By understanding these common violations, healthcare organizations can better arm themselves to prevent breaches, protect patient information, and stay within the boundaries of HIPAA regulations.
Failure to Conduct Regular Audits
Periodic reviews of records and procedures are essential in maintaining HIPAA compliance. Neglecting to perform regular audits can result in unnoticed breaches and persistent non-compliance issues, contributing to the list of common HIPAA violations. These audits are a critical component of an organization’s risk management process and can reveal areas that need improvement before they become major issues.
Use of Social Media
In today’s digital age, social media use can potentially lead to HIPAA violations. Employees might unknowingly share PHI while posting images or information about patients on social media platforms. Even if names are not disclosed, a picture or any identifiable information can be enough to violate HIPAA regulations.
Delayed Breach Notifications
Under the HIPAA Breach Notification Rule, covered entities are required to report breaches of unsecured PHI within 60 days of discovery. Failure to provide timely notifications is a common violation. This not only includes reporting the breach to the affected individuals but also to the Department of Health and Human Services, and, in cases where the breach affects more than 500 individuals, to the media.
Ignoring the Need for Encryption
While the Security Rule does not explicitly demand encryption, it does call for addressing this area. If an entity decides not to use encryption, they must document the reason and implement an equivalent measure to protect the data. However, failure to use encryption on electronic devices, email systems, and databases that store PHI often leads to breaches and, thus, HIPAA violations.
Lack of Incident Response Plan
Another common violation is the absence of a well-documented incident response plan. HIPAA requires covered entities to be prepared for potential security incidents, including data breaches. Not having a formalized procedure in place for detecting, reporting, and responding to such events can lead to a delay in mitigating the breach, resulting in further unauthorized exposure of PHI.
Unauthorized Release of Information
An all too common HIPAA violation occurs when health care providers release information to an individual’s employer, family member, or public platforms without the patient’s explicit permission. While seemingly innocent, divulging any form of protected health information without consent is a clear breach of HIPAA regulations.
Sending PHI to the Wrong Recipient
Mistakes happen, but in the healthcare setting, a simple error like sending an email containing PHI to the wrong recipient can lead to a HIPAA violation. Whether it’s a misdirected fax, email, or even mail, these types of violations occur more often than one might think and underscore the importance of double-checking all communications that contain PHI.
Lack of Business Associate Agreements
As mentioned previously, covered entities must have a signed business associate agreement (BAA) with any third party that has access to PHI. However, not having a BAA in place when one is required is a common violation. This can occur when a covered entity fails to realize a vendor qualifies as a business associate, or due to negligence in getting the agreement in place.
Overdue Risk Analysis
HIPAA’s Security Rule mandates that covered entities and business associates conduct a comprehensive, organization-wide risk analysis. However, some organizations either neglect this duty altogether or do not perform these risk analyses regularly enough, resulting in outdated understanding of their security posture.
Exceeding the 30-day Window for Providing Patients with Their Medical Records
Patients have the right to receive copies of their medical records promptly and certainly no later than 30 days after their request. Noncompliance with this rule is a frequent issue in healthcare institutions, often due to administrative oversight or delays.
Failure to Implement Sufficient Security Measures
Finally, simply failing to implement adequate security measures to safeguard PHI is a widespread violation. This can include a lack of firewalls, antivirus software, data encryption, and secure user authentication protocols. In the digital age, failing to take these basic steps leaves healthcare organizations vulnerable to breaches and violations.
HIPAA Violation Penalties
While the benefits of HIPAA should be reason enough to ensure compliance, robust penalties are in place to act as the proverbial stick, should the carrot fail. HIPAA is enforced by the Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR). The OCR investigates HIPAA violations and may impose penalties. State attorneys general may also investigate and punish organizations or individuals following HIPAA violations. Serious violations may even be handled by the Department of Justice.
If the OCR confirms a civil violation has occurred, they have a range of options. They can: get the violating entity to voluntarily comply with HIPAA’s Rules; instigate corrective action; or reach a resolution agreement. If the issue is not taken care of in a timely manner, generally 30 days, then the OCR can impose sanctions based on a scale of seriousness and degree of perceived neglect on the part of the offender.
| Level of Neglect | Minimum Fine | Maximum Fine |
|---|---|---|
| Unknown | $100/violation, maximum $25,000/year for repeat violations | $50,000/violation, maximum $1,500,000/year |
| Reasonable Cause to Support Neglect | $1000/violation, maximum $100,000/year for repeat violations | $50,000/violation, maximum $1,500,000/year |
| Willful Neglect but Issue Resolved Within Delay | $10,000/violation, maximum $250,000/year for repeat violations | $50,000/violation, maximum $1,500,000/year |
| Willful Neglect and Issue Not Resolved Within Delay | $50,000/violation, maximum $1,500,000/year for repeat violations | $50,000/violation, maximum $1,500,000/year |
As noted, serious and criminal violations are dealt with by the Department of Justice, who can levy fines a well as custodial sentences against offenders. The penalties are defined on a similar scale of volition and severity.
| Type of Infringement | Maximum Fine | Maximum Sentence |
|---|---|---|
| Knowingly obtaining or sharing PHI in violation of HIPAA | $50,000 | 1 year |
| Offenses Committed Under False Pretenses | $100,000 | 5 years |
| Offenses to use PHI for Commercial Advantage | $250,000 | 10 years |
Organizations should be aware that they may be liable for penalties under state law in certain cases. This should be researched and monitored, with staff trained accordingly.
Preventing HIPAA Violations
Preventing HIPAA violations is paramount to any healthcare organization as it is not just about compliance with the law but also about protecting patient trust and maintaining the integrity of healthcare services. At the heart of preventing HIPAA violations is a comprehensive and continuous training program. Every staff member, regardless of their role within the organization, should be adequately trained on the importance of HIPAA, the privacy rights of patients, and the handling of PHI. Additionally, ongoing education is crucial to keep staff updated about changes in HIPAA regulations and the evolving threats to data security, such as emerging cyber threats.
Risk assessments should be carried out regularly to identify potential vulnerabilities in the handling and storage of PHI. This process helps to ensure that all necessary physical, technical, and administrative safeguards are in place and functioning as intended. It’s essential to review and update these safeguards as new risks emerge.
Covered entities also need to be meticulous when dealing with business associates who have access to PHI. Before sharing any PHI with a third party, a Business Associate Agreement (BAA) should be in place, outlining the associate’s responsibilities to protect the data.
In terms of technology, covered entities should utilize encryption for data at rest and in transit, maintain secure networks, and implement robust access controls to ensure only authorized individuals can access PHI. Regular audits of access logs can help to detect and address unauthorized access quickly.
Healthcare organizations should also establish clear policies and procedures around the use and disclosure of PHI, ensuring that staff know when it is appropriate to share PHI and with whom. It’s also important to maintain an open line of communication for staff to report any potential breaches or suspicious activities without fear of retribution.
Lastly, organizations should develop a well-structured incident response plan. This plan should outline the steps to be taken in the event of a breach, including containment, mitigation, reporting, and review processes. This way, any damage can be minimized, and lessons can be learned to prevent similar incidents in the future.