Not all HIPAA violations are as a result of insider theft, and many Covered Entities and Business Associates apply a scale of employee sanctions for HIPAA violations depending on factors such as whether the violation was intentional or accidental, whether it was reported by the employee as soon as the violation was realized, and the magnitude of the breach.
Some Covered Entities also apply employee sanctions for HIPAA violations on employees who were aware a violation by another employee had occurred, but failed to report it. Because of the expense and disruption attributable to applying employee sanctions for HIPAA violations, it is worthwhile dedicating more resources to initial employee training in order to prevent HIPAA violations — whether intentional or accidental — from occurring.
Although it was mentioned above that OCR has the discretion to waive a civil penalty for unknowingly violating HIPAA, ignorance of the HIPAA regulations is not regarded as a justifiable excuse for failing to implement the appropriate safeguards. It may also be possible for a CE or BA to receive a civil penalty for unknowingly violating HIPAA if the state in which the violation occurs allows individuals to bring legal action against the person s responsible for the violation.
Although HIPAA lacks a private right of action, individuals can still use the regulations to establish a standard of care under common law. Several cases of this nature are currently in progress. The audits are not being conducted specifically to find HIPAA violations and to issue financial penalties, although if serious violations of HIPAA Rules are discovered, financial penalties may be deemed appropriate.
OCR provided technical assistance to help those entities correct areas of noncompliance and no penalties for HIPAA violations were issued. Now, 5 years on, covered entities have had ample time to develop their compliance programs. This time around, OCR is not expected to be so lenient.
One of the biggest areas of noncompliance with HIPAA Rules discovered during the first phase of compliance audits was the failure to conduct a comprehensive, organization-wide risk assessment. The risk assessment is fundamental to developing a good security posture.
If a risk assessment is not conducted, a covered entity will be unaware whether any security vulnerabilities exist that pose a risk to the confidentiality, integrity, and availability of ePHI. Those risks will therefore not be managed and reduced to an acceptable level. Risk assessment failures frequently attract financial penalties. Several covered entities have been fined for failing to revise BAAs written before September , when all existing contracts were invalidated by the Final Omnibus Rule.
BAAs — contracts that lay out the permitted uses and allowable disclosures of PHI — should be signed with every third party service provider with whom PHI is disclosed including lawyers.
When deciding on an appropriate settlement, OCR considers the severity of the violation, the extent of noncompliance with HIPAA Rules, the number of individuals impacted and the impact a breach has had on those individuals. OCR also considers the financial position of the covered entity. Punitive measures may be necessary, but penalties for HIPAA violations should not result in a covered entity being forced out of business. OCR continued with its HIPAA Right of Access enforcement initiative that commenced in late and by year end had settled 11 cases where patients had not been provided with timely access to their medical records for a reasonable cost-based fee.
HIPAA enforcement continued at a high level in Two covered entities settled cases over the failure to provide patients with a copy of their medical records, in the requested format, in a reasonable time frame. Two records were broken in Author: Steve Alder has many years of experience as a journalist, and comes from a background in market research. He is a specialist on legal and regulatory affairs, and has several years of experience writing about HIPAA.
This plays a key role in protecting the identity and privacy of patients. If this sensitive data is compromised, it can be used to harm the patients it belongs to.
However, the violations listed below are some of the most common examples:. This is why careful training and organization are so important. This is particularly the case in businesses related to healthcare. They will also report potential violations made by their coworkers. Patients, healthcare employees, and health plan members usually report these complaints. The OCR looks into covered entities who report security breaches involving more than records.
Sometimes they will conduct investigations into smaller breaches as well. They will also audit the business associates of covered entities. State attorneys general also have authority to look into security breaches. These investigations are usually because of complaints about potential violations. Investigations are also made in response to official breach reports. Judges have even issued fines costing millions of dollars.
Besides healthcare providers, plans, and clinics, individuals can receive fines as well. Civil penalties are for individuals who commit violations without any malicious intent. This is usually the case when the violation is the result of forgetfulness. In those cases, violations will lead to criminal penalties. They can be as follows:. These are only applied where violators acted willfully and knowingly.
Minor and accidental violations typically invoke a lesser penalty. Covered Entities and Business Associates are required to implement administrative, technical, and physical safeguards to prevent events such as computer errors. If the inadvertent disclosure is attributable to a Covered Entity or Business Associate failing to implement safeguards — or failing to provide instruction on how to use the computer securely — the employer is at fault.
If, however, the inadvertent disclosure is attributable to operator error, the employee is at fault. Third parties scouring the Internet for vulnerable applications and storage volumes can also identify breaches of HIPAA. Your employer should have a process for reporting breaches of HIPAA that include when a colleague breaks the rules.
Usually you would report the breach to a supervisor, manager, or departmental head; but, if you are uncomfortable speaking with somebody in your department — or that person is the colleague breaking HIPAA rules — you should be able to speak with the HIPAA Privacy Officer. Author: Steve Alder has many years of experience as a journalist, and comes from a background in market research.
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