You are a leader or have interests in home healthcare and hospice, so you are aware of the challenges and opportunities presented in this electronic age.
Are you conducting your HIPAA Risk Analysis?
Do you have your Disaster Preparedness and Recovery Policies and Procedures current?
Do you have a policy regarding use of social media in the workplace?
Are you allowing nurses to take pictures of wounds with their personal cell phones?
Are you employing etechnology ethics ?
Technology and Change:
Today, we all use a GPS, an iPhone, a Droid or some brand of cell phone, and touched our iPad or other tablet, powered up a laptop or computer to send email, or completed status updates to Facebook, Linkedin, or Twitter or accessed the Internet for patient information, financial or clinical reports and benchmarks, or budgets. Technology has not necessarily made life easier. It certainly has increased its constraints on time.
Technology has impacted how we do banking, make purchases, conduct transactions, complete travel reservations, attend conferences, provide healthcare schedules, teach patients and personnel, automate revenue cycle management, and generate personnel schedules and agency reports.
The negative effects include:
5/19/11 57 hard drives from the servers at the Blue Cross Blue Shield Tennessee Call Center were stolen with 1 million individuals impacted.
9/29/11 4.9 million Tricare beneficiaries affected after data stolen.
10/11 McAfee demonstrated how they could hack into a Medtronic Insulin Pump and could have lethally increased the dose.
2010 File boxes of patient records found in two major cities.
The world is changing. The workforce is changing. Remote workers need special policies re PHI and protection of patient data. Be certain they attend sessions regarding HIPAA HITECH, privacy, and security. You may have a policy that addresses ‘view only’ access to data with no printing of data.
The American Recovery and Reinvestment Act of 2009 (ARRA) was signed into law on February 17, 2009. Title XIII of ARRA is the Health Information Technology for Economic and Clinical Health Act (HITECH Act). HITECH legislation is meant to affect health care delivery
- One way to affect change is to provide financial stimulation to create and have physicians and hospitals adopt electronic health records (EHR)
The Federal operating plan can be found at http://www.hhs.gov/recovery/reports/plans/onc_hit.pdf
This act includes $20 billion in funding for health information technology projects.
These projects include reimbursement incentives for health care providers to acquire electronic health record technology. Hospitals are being encouraged to move toward becoming paperless.
HITECH has TEETH
The HITECH Act has given the HIPAA Privacy and Security Rules real teeth by strengthening business associates agreements. One of the major goals of the HIPAA Privacy Act was and is “to assure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high quality health care and to protect the public’s health and well being.” HIPAA ensures that personal health information given to covered entities is protected, even information shared with home health agencies, physicians, hospitals, third party billing providers, coding specialists, and others who provide or pay for healthcare services. But Business Associates were not held to the same standards as covered entities. HIPAA HITECH moved to correct this weakness.
- The BAA states that the Business Associate is obligated to:
Use/disclose PHI only as permitted or required by the agreement and by law.
Use appropriate safeguards to prevent use or disclosure of PHI other than as permitted by the BAA.
- Report to the healthcare entity any use or disclosure of PHI not permitted. Require all subcontractors and agents that create, receive, use, disclose, or have access to PHI to agree, in writing tobe held to the same restrictions and conditions on use or disclosure of PHI.
HIPAA HITECH imposed breach notifications on both covered entities and business associates and increased individual rights with respect to PHI maintained in EHRs. In addition, there is increased enforcement of, and penalties for HIPAA violations..
The Department of Health and Human Services (HHS) has published a notice of proposed rulemaking that would modify the HIPAA Privacy, Security, and Enforcement Rules. The Proposed Rule implements the requirements of the HITECH Act as well as expands upon the statutory provisions of the HITECH Act. On March 15, 2010 HHS stated that other than the security breach notification rule and new penalty levels, the new regulation would be enforced. The compliance date for all provisions of the Proposed Rule is 180 days after publication of the Final Rule. HHS accepted comments on the Proposed Rule through September 13, 2010. As of January, 2012, the final rule has not yet arrived, but is expected soon.
Prior to the HITECH Act, a Business Associate (BA) was not directly subject to HIPAA privacy and security requirements. The BA obligations were to the CE under the terms of the agreement. The BA was subject to contractual remedies only for any breach of the business associate agreement (BAA).
- Prior to ARRA, HITECH Business Associates were not required to meet the obligations for Administrative, Physical, and Technical safeguards, and Procedure and Documentation Requirements.
- NOW the BAA must clearly require the BA to comply with HIPAA regulations just as the CE.
Penalties for the BA are the same as the CE. That is a huge responsibility for the BA and the CE.
The HITECH Act and the Proposed Rule require business associates to comply with the requirements of the HIPAA Security Rule and implement policies and procedures in the same manner as the CE. Also, subcontractors to business associates must develop Security Rule compliance programs. Rules to be followed include:
Security and Incident response policies
- Breach Log
- Every employee must understand they have personal responsibility for intentional breaches
- Email with PHI is to be encrypted
A breach is an unauthorized acquisition, access, use, or disclosure of protected health information relating to failure to comply with organizational security or privacy policies, or violation of federal or state privacy and security regulations. Accessing information by an employee of a covered entity, in good faith, is not considered a breach.
However, HITECH strengthens the specifics of privacy and security, significantly increasing penalties, establishing a heightened enforcement scheme giving state attorneys general enforcement authority. Individuals may now be held accountable for wrongful disclosure (HITECH Act section 13409).
Under the new law, when a breach is learned, a covered entity (CE) should notify each individual whose unsecured PHI has been, or believed to have been, accessed or disclosed. Business associates must notify the CE of the breach. Note the understanding that the breach has been evaluated to have caused harm to the individual. CE and BAs must notify individuals about a breach as soon as possible but, no later than 60 days following discovery of the breach.
If a breach involves 500 or more individuals, the department of Health and Human services should be immediately notified. They will post the covered entity on their website. DHHS began posting names on March 1, 2010. Breaches of below 500 must be recorded on a log and annually sent to DHHS.
UCLA Medical Center recently was fined $865,000 and required to submit(and have approved) a corrective action plan after allowing workers to access records who should have had more limited access and a higher level authorization. This is an organization with a sophisticated compliance plan and still had this breach.
The Privacy Rule gives individuals the right to obtain copies of their paper PHI from a CE. The HITECH Act expanded those access rights to PHI maintained in an EHR.
ARRA prepares for the government goal of establishing electronic health records for all Americans by 2014
- to accomplish this goal, privacy rules have been strengthened and the requirements for breach notification and responsibilities of business associates have been greatly increased.
CEs must prepare processes in response to the requirements and have updates to the BAA.
At Select Data,
- We believe in Corporate Compliance
- We have a strong HIPAA Awareness and Corporate Compliance Plan which assertively strives to protect PHI.
- We notify the Corporate Compliance Officer of suspected or actual incidents of PHI disclosure
We want to comply with the regulations and we want to protect health information because, not only is it the law, but, it is the right thing to do.
57 million US consumers have accessed their medical information. Another 40 million want to do so states Cyber Citizen Health US, 2011 survey.
The Security Plan: Each CE must plan and document how they will operate during a disaster and how ePHI will be secured. HIPAA 2005 required a Data Backup Plan. That plan requires the backup plan for accessing protected data in case the original data has been destroyed.
The Plan must show regular duplication of patient files that are stored in a secure location. The Plan also required an inventory of software and hardware used so key systems can be restored quickly, if a disaster occurs. It is not acceptable to merely store information on a cell or smartphone. Have a clear concise, complete backup plan.
The Security Plan is expected to show ways of protection from access to the premises by employees. It also requires records and how each employee can access data. In addition, levels of access are to be delineated. There should be power on authentications and auto-locks. CEs are expected to test and revise their contingency plans taking steps to identify and mitigate areas of weakness.
Employees should be aware that not just patient names are identifiers. PHI also includes addresses, phone numbers, drivers license numbers, medical record numbers, policy and account numbers, VIN numbers, health plan numbers, and relative name and identifiers.
Lastly, the HIPAA Security Plan must be in writing and the industry standard is an annual review (though there is no frequency statute). The Plan should have detailed policies and procedures with all incidents recorded, identifying a Disaster Plan with contingencies and technological interventions planned.
To read more about HITECH, please refer to Federal Register/Vol 75, No. 134/Wednesday, July 14, 2010/Proposed Rules
Department of Health and Human Services, Office of the Secretary
45 CFR Parts 160 and 164
Modifications to the HIPAA Privacy, Security, and Enforcement Rules Under the Health Information Technology for Economic and Clinical Health Act
Agency: Office for Civil Rights
Social and Professional Media
Social media is one of the most dangerous of risks. What an interesting dichotomy: on one hand we, in health care, are operating under increasing rigid privacy restrictions and on the other, individuals are posting the most intimate or the most mundane information about themselves and others on the internet for the world to read and see forever.
Agencies that allow clinicians to use their personal smart phones to take pictures of wounds and upload them to a patient record may need to be concerned about patient information stored on a personal cell phone. Who owns the data? Who will protect the data? Is texting a safe way to transport patient data? Experts say, “No.”
Should clinicians worry that their party and beer drinking pictures could be used against them if they are involved in a med error or a law suit?
At the VA, a new social media directive covers the use of Facebook pages, Twitter feeds, blogs, and YouTube channels. They use examples of these sites to educate personnel re personal and professional responsibilities.
100% of the Top 100 firms employ personnel to monitor social media. Every person interviewed has their social media investigated. Hiring is dependent upon the findings. Law firms, banks, accounting firms use social media investigators. Garner Consulting and TechCrunch Blog state “the new social media customer relationship management market (CRM) is expected to reach over $1 billion in revenue by the end of 2012, up from approximately $625 million in 2010. World-wide social CRM is projected to total $820 million in 2011.”
What are the ethics of making negative comments about a present or prior employer? Many organizations, especially banks, hospitals, and academic institutions are monitoring what is said about them and their clients or patients. They have clear policies reflecting training as to HIPAA. If an employee or former employee breaches a confidence, they may be sanctioned or sued.
WHAT Can You Do?
Encrypt email with patient or other sensitive data!
Be certain your organization has a strong corporate compliance plan in place. Have a strong Corporate Compliance Officer who reports to the CEO and Board of Directors. Consider the CCO having direct access to corporate counsel.
Have compliance policies and procedures that also address disaster preparedness, social media, data protection and backup. Annually, minimally, review the Corporate Compliance Plan. Keep a copy of the presentation with an attendance sheet to demonstrate corporate wide support of the plan. Be clear as to internal audits conducted as well as a corporate wide risk analysis conducted annually.
Review the American Nurses Association’s Principles for Nurses re Social Media and Social Networking. Draw from the ANA’s Code of Medical Ethics. Review the American Physical Therapy Association Code of Ethics. Many clinical associations can provide ethical guidelines that can assist with policy development.
Mayo Clinic has refined policies on social media well worth reading. Protect your agency. Be certain your employees know your agency’s ethical stance. Review regulations frequently:
Expect clinicians to adhere to their Standards of Practice. Expect everyone to adhere to the best practices in ethical protection of patient data. Password protect and change them frequently.
Be serious and state your ethical beliefs, in front of employees, frequently. Encourage employees that when in doubt…don’t. Don’t send data that causes them to hesitate. Encourage them to double check what is being sent to whom.
Ethics and Compliance have become the watchwords for a safer healthcare environment. Remember agencies with similar beliefs seek each other out. The ethical industry leader wants to work with other industry organizations that share the concern to protect, care, and achieve expected patient outcomes in a compliant ethical manner. Have a great 2012.