HIPAA Administrative Simplification: Not So Simple; Fraught with Penalties

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1 HIPAA Administrative Simplification: Not So Simple; Fraught with Penalties Presented by: Angela Phillips, PT President & CEO Images & Associates and Nancy Beckley, MS, MBA, CHC Founder & President Nancy Beckley & Associates, LLC November 13, 2013 SLIDE 1

2 Disclaimer Panacea has prepared this seminar using official Centers for Medicare and Medicaid Services (CMS) documents and other pertinent regulatory and industry resources. It is designed to provide accurate and authoritative information on the subject matter. Every reasonable effort has been made to ensure its accuracy. Nevertheless, the ultimate responsibility for correct use of the coding system and the publication lies with the user. Panacea, its employees, agents and staff make no representation, warranty or guarantee that this information is error-free or that the use of this material will prevent differences of opinion or disputes with payers. The company will bear no responsibility or liability for the results or consequences of the use of this material. The publication is provided as is without warranty of any kind, either expressed or implied, including, but not limited to, implied warranties or merchantability and fitness for a particular purpose. The information presented is based on the experience and interpretation of the publisher. Though all of the information has been carefully researched and checked for accuracy and completeness, the publisher does not accept any responsibility or liability with regard to errors, omissions, misuse or misinterpretation. Current Procedural Terminology (CPT ) is copyright 2011 American Medical Association. All Rights Reserved. No fee schedules, basic units, relative values, or related listings are included in CPT. The AMA assumes no liability for the data contained herein. Applicable FARS/DFARS restrictions apply to government use. CPT is a trademark of the American Medical Association. Copyright 2013 by Panacea. All rights reserved. No part of this presentation may be reproduced in any form whatsoever without written permission from the publisher Published by Panacea, 287 East Sixth Street, Suite 400, St. Paul, MN SLIDE 2

3 Didn t We Get Hip in 03? SLIDE 3

4 Why Are We Here Rule changes extend patient rights, increase patient protections and increase requirements for Business Associates From compliance period to enforcement period And with significantly increased financial penalties for a breach Practices need evidence that what we do everyday meets the requirements Now, more than ever, practices need to take the legal interpretations and put them into practice SLIDE 4

5 Objectives Following participation in this Webinar, participants will: Have an increased understanding of what has changed in the rules and how that impacts the small practitioner Understand some key issues related to risks under the expanded rules Be able to identify some of the hidden risks present in a small practice Have some practical guidelines and tools that support the legal interpretations that we have gotten from our industry experts SLIDE 5

6 In this Webcast: We Specifically Cover These Areas Need for Policies and Procedures Business Associates Notice of Privacy Practices Risk Assessment & Safeguards Breach Hidden Risks Appropriate Use of Legal Counsel to Support Your Efforts Practical Tips and Tools for Compliance SLIDE 6

7 The Cost of Non-Compliances Did Not Know $100 - $50,000 per violation Reasonable Cause (not willful neglect) $100 to under $50,000 per violation Willful Neglect Corrected $10,000 up to $50,000 per violation Willful Neglect Not Corrected $50,000 per violation Annual Maximum $1.5 million SLIDE 7

8 Policies and Procedures Required by the rule Form the basis for how you do what you do Guide the workforce Define procedures and practices for your individual practice Freedom to develop P&P s that fit your practice No single right way to comply Practice What You Preach! SLIDE 8

9 Business Associates A Business Associate is a person or organization that creates, receives, accesses, maintains, transmits, discloses, or uses protected health information (PHI) in order to perform a function, service, or activity by or on behalf of the organization. Examples include: companies that perform claims processing, administrative services, accreditation, data analysis, billing, legal services, consulting, software maintenance or support that includes access to PHI, or accounting services. SLIDE 9

10 Identifying Your Business Associates Provide services under contract not as a member of your workforce 1099 s Contracts for services Fax services Data storage and maintenance including cloud storage Joint Ventures, ACOs, vendors (some not all); AND Creates, receives, accesses, maintains, transmits, discloses, or uses protected health information (PHI) SLIDE 10

11 Getting Down to Business with Associates When you mandate a BAA as a condition of business with your practice you expect: BA to be compliant with all the updates Have policies and procedures in place that spell out How they protect data Risk mitigation policies Use of downstream business associates Breach notification In other words, for everything a CE does, a BA must now incur the same responsibility and same liability SLIDE 11

12 Likely NOT A Business Associate Cleaning company Pest control service Break room vendor Transit authority (dropping patients off) Jimmy John s delivery guy UPS (the guys in brown shorts) Gmail* (Google*), Yahoo, or AOL SLIDE 12

13 Notice of Privacy Practices Key changes: Marketing and Fundraising Restrictions - Out of Pocket Payment Right to be notified of a breach Requirements: Update and redistribute: First visit following revision Post in visible areas Post on your website Make available in paper form SLIDE 13

14 Steps to Risk Assessment Identify scope Gather data Document Threats and Vulnerabilities Assess Current Security Measures Determine Likelihood of Threat Occurring Determine Impact Determine Level of Risk Identify Security Measure This looks very different for a small practice versus a large health system! SLIDE 14

15 Risk Analysis & Safeguards Natural Human Hurricane, floods, tornados, electrical storm Unintentional acts, curiosity, malicious software downloaded, unauthorized access, theft, use/loss/access to mobile devices Environmental Power failure, liquid damage Security of physical plant Mechanical Technology Loss, failure, security Encryption failure SLIDE 15

16 Typical Safeguards: Administrative Administrative Risk Analysis and Security & Contingency Plans Policies and Procedures Assignment of Security Officer Authorization and Workforce Clearance Education and Training Login Monitoring SLIDE 16

17 Typical Safeguards: Physical Physical Facility Security Plan Access Control, Maintenance Records, Contingency Plans Workstation Use and Security Configuration, screen savers, policies Device & Media Controls Media use and reuse Inventory Backup & Storage SLIDE 17

18 Typical Safeguards: Technical Technical Access control User ID and passwords Auto logoff Authentication Transmission security Encryption/decryption Secure Facsimile SLIDE 18

19 Breach Breaches are defined as the unauthorized acquisition, access, use, or disclosure of unsecured protected health information which compromises the security or privacy of such information, and poses significant risk of harm to the individual, except where an unauthorized person to who such information is disclosed would not reasonably have been able to retain such information. A breach is not considered to have occurred if the health information has been de-identified. SLIDE 19

20 Breach excludes: Unintentional access Inadvertent disclosure to another workforce member also authorized to access Disclosure to an individual where a covered entity or business associate has a good faith belief that an unauthorized person to whom the disclosure was made would not reasonably have been able to retain such information. SLIDE 20

21 Common causes: Loss, misplacing or theft of devices Laptops, desktops Backup tapes/drives, CD s, memory cards, flash drives, smart phones Unintentional employee act Sale or disposal of hard drives prior to destroying information Misdirected communications Mailed, ed, faxed to incorrect individual Improper disposal of records Paper records Majority of these were mishandling of information on the part of a BA OCR Report to Congress ( ) LARGE BREACHES (500+) The breach reports submitted to the Secretary in 2010 described five general causes of incidents, four of which were also reported in 2009: (1) theft; (2) loss of electronic media or paper records containing protected health information; (3) unauthorized access to, use, or disclosure of protected health information; (4) human error; and (5) improper disposal. SMALL BREACHES (<500) The greatest number of reported incidents resulted from human or technological error and involved the protected health information of just one individual. SLIDE 21

22 Hidden Risks Mobile devices protection, loss, theft smart devices : phones and other mobile devices Texting Camera Phones Internet Access/Use Services Lack of malware Unprotected/Untrained Internet Access Non-encrypted Phishing Electronic fax, shredding, rental of equipment (fax, copy machines, etc.) Anything with a drive copy machine, printer with memory, scanners Workstations SLIDE 22

23 Use of Legal Counsel BAA s: Do NOT attempt to go it alone! Don t download or copy sample BAA s OCR guidance is a good start Includes compliance issues; but.. Does NOT give you protections Any formal investigation Too much at risk Suspected/Actual Breach Clarification of State versus Federal issues Workforce sanctions SLIDE 23

24 Let s Get Practical SLIDE 24

25 Tips & Tools P&P Customize no matter what you use! Look for simpler approaches Involve your workforce Compliance Binder evidence of effort Automatic efforts screensavers, auto reminders re: passwords SLIDE 25

26 Help I Lost My smartphone! Consider great apps Find My Phone Require screen lock passcode Maximum number of characters Specify in policy Require reporting SLIDE 26

27 Fax and Furious Traditional fax machine Cover sheets out Cover sheets in Internet and cloud faxing To BAA or not BAA? You better BAA if transmitting PHI How do you know if compliant Don t take the website ad as proof Require a BAA o Don t sign up till you have it! SLIDE 27

28 Geeks on Call Identify your IT department even if you don t have a department Best Practice for very small practice: Contract (such as Geek Squad) Windows safeguard (encryption) for files: BitLocker (Windows 7 Ultimate) Malware protection Recommended by your IT Consultant SLIDE 28

29 and smail Mailing patients their records Mailing insurance companies records, etc. ing out of EMR program SLIDE 29

30 Shred Shed Paper shredding Standards for in office shredder Shredding company options HIPAA Compliant with BAA On-site under your supervision Electronic shredding: media Hard drive shredding SLIDE 30

31 The Front Lines: Mitigating Risk NPP provided at front desk, (registration) ensure staff understand changes, and able to answer basic patient questions Have current dated copy available as resource Archive outdated policies, toss outdated NPP copies Who handles patient requests? The Privacy Officer of Many Hats must know how to handle requests and inquiries Clinical staff: be on outlook for concerns, mitigate and report SLIDE 31

32 I Know, I Know, I Know Resist urge to NOT train, update and educate because employees think they understand HIPAA Conduct updated training, and test and document completion Focus on social media age group specificity Encourage questions and reporting of concerns (culture of non-retaliation) Many vendors offer training based on job category option for customization? SLIDE 32

33 Train Tracks Employee Training On hire When changing roles When P&P or rules change When Privacy Officer identifies need Levels of Training Annual updates Validation and verification Track your training SLIDE 33

34 Training OCR provides resources: Main Website ml Includes a series of pdf slide presentations appropriate for this audience Patient Privacy: A Guide for Providers HIPAA and You: Building a Culture of Compliance Examining Compliance with the HIPAA Privacy Rule SLIDE 34

35 Supplemental Training Tips Blast Set sequence or repeat time in Outlook or other mail providers Posting on bulletin boards, staff newsletters, staff meetings Self paced modules SLIDE 35

36 George Clooney, Brittany Spears & Michael Jordan Employees can t resist the urge to peek feel me, touch me, see me Tommy Rock Opera Do you see celebrities at your practice? Local heroes, politicians, sports figures Extra precautions Extra guidance Boxers or briefs? SLIDE 36

37 Getting Down to Business with Associates When you mandate a BAA as a condition of business with your practice you expect: BA to be compliant with all the updates Have policies and procedures in place that spell out How they protect data Risk mitigation policies Use of downstream business associates Breach notification In other words, everything a CE does, a BA must now incur the same responsibility and same liability SLIDE 37

38 References: Annual Report to Congress on Breaches of Unsecured Protected Health Information For Calendar Years 2009 and eachrept.pdf SLIDE 38

39 Speaker Contact Information Nancy J. Beckley, MS, MBA, CHC President Nancy Beckley & Associates LLC Angela Phillips, PT President Images & Associates SLIDE 39

40 THANK YOU FOR ATTENDING SLIDE 40

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