Tag Archives: HIPAA

Weekly Security News for the Week Ending March 20, 2020

Senate Kicks the Can Down The Road Again With FISA Renewal

Last week it looked like Congress was going to renew the parts of the Foreign Intelligence Surveillance Act that DID EXPIRE last weekend.  But Congress being Congress, they didn’t.  On Monday the Senate agreed to kick the can down the  road for 77  days.  Now the House has to agree.  In the meantime, I am not sure what the NSA is doing about those expired provisions and they only plan to kick the can down the road on two of the three expired provisions.  In fairness, Trump wants to reign in the Intelligence Community since he doesn’t trust them and never has.  This could work to the advantage of the privacy advocates.  Source: Reuters

Covid-19 Web Site President Said Google Would Bring Online Monday is Online But Not Like he Said

Google/Alphabet subsidiary Verily launched its Project Baseline Coronavirus website, but it is not national, it only covers two counties in the San Francisco Bay area.  It was supposed to allow people to make appointments to get tested, but the few slots that were available filled up instantly.  Only people living in those two counties are even allowed to use the site.

Google says that they are working on a nationwide INFORMATION ONLY site and it will be released sometime in the future.  Source: Bleeping Computer

Open Source Vulnerabilities Surge in 2019

Some people say that open source software is more secure.

Reality is a little different than that.

In 2019 DISCLOSED open source vulnerabilities surged from 4,000 to 6,000 last year.  The good news is that the open source community is good about fixing the vulnerabilities once they are found.  85% of the vulnerabilities  have a fix once they are responsibly disclosed.

Bottom line, make sure that you have an effective open source software patching program to keep your company safe. Source: Help Net Security

U.S. Census Figures Coronavirus Will Be Over in Two Weeks

The Census, that every 10 year event, was supposed to start this week.  But there is kind of an issue.  I think there is some kind of virus going around.  Part of how the Census works is that Census workers go around collecting information from people.  Given the current situation, (a) Census workers are probably not going to be willing to risk their health for a few bucks, (b) people that they visit are likely not going to let them in the door or (c) some other less than nice thing might happen.

So what did the geniuses at the Census  bureau decide to do?  They decided that they are going to send out Census workers in 13 days on April 1st. WHAT, EXACTLY, DO THEY EXPECT TO BE DIFFERENT IN 13 DAYS?

Ya gotta wonder about those folks in Washington.  Source: Reuters

OCR Lifts Penalties For Telehealth Use During Covid-19

Its all hands on deck.  HIPAA has a number of provisions that allow a healthcare provider to bypass certain HIPAA rules.  A pandemic is not one of those options.  Of course since the Feds make the rules, they can change them.  In light of the current situation, HHS says that they will not penalize Covered Entities for using telehealth providers who are not fully HIPAA compliant.  They are not saying using those providers is legal;  they are just saying, given the circumstances, they are not going to go after providers who do so.  This will allow providers to use apps like Facetime or Google Chat to diagnose patients instead making them come into the office and potentially infect dozens of other people.  It seems like a reasonable trade off.  Source: HealthIT Security

Colorado Healthcare Provider Fined $111,000 For HIPAA Violations

It seems that the US Department of Health and Human Services Office of Civil Rights is increasing enforcement actions against health care providers and their vendors (known as business associates).  While one might have suspected that enforcement actions would be down under this administration, in fact, the opposite is true and fines are up.

In this case, the Pagosa Springs (Colorado) Medical Center paid $111,000 plus for failing to terminate the access of a former employee to a patient calendar program.

The calendar only contained information on 557 patients, so this is not a massive breach.

They also did not obtain a signed Business Associate Agreement from Google, who’s software they were using.

The former employee accessed (but didn’t appear to do anything evil with the data) the data twice, two months apart.

The medical center had to enter into a corrective action program that included a number of items including improved policies, training and other items.

OCR Director Roger Severino said that enforcement will increase under his watch.

Evidence of this is that this is the third enforcement action in the last month.

On December 4th, a Florida based physicians group paid a $500,000 fine for various HIPAA violations.

A week prior to that, OCR settled with a Hartford based practice for $125,000 for impermissible disclosure of protected health information.

Putting this all together, it would seem to lend some credence to OCR’s claim that enforcements are up.

In the first case, only 557 records were involved.  That translates to a fine of $200 per record disclosed.

In addition, to fine someone for not having a BAA with a company like Google indicates that they definitely want people to obey the process, without regard to there being significant risk (on the part of Google).  After all, Google probably has as good a security as the best medical practices.

The HIPAA compliance process is complex and even daunting, but failing to follow it can be expensive.

It also appears that the Office of Civil Rights has a very long memory as one of these fines was for something that happened 7 years ago, in 2011.

Our recommendation is to follow the process and document what you have done.  Though that can be painful, so is writing a check to the government for $100,000 or even $500,000.

Information for this post came from Health IT Security.

 

 

HIPAA Privacy Rules and High Tech Services

Health IT Security wrote an article beating up Amazon on it’s HIPAA compliance process.  The article was not favorable and also interesting.

The issue that they are talking about was a medic-alert style bracelet that someone bought on Amazon.  After this person bought it, the vendor put a picture of it, with the lady’s name, birth date and medical condition on it in an ad on Amazon.  The customer found out about it when her physician called her saying he had seen it.

When the buyer contacted Amazon, she was told they would investigate.  She later received an email from Amazon saying that they would not release the outcome of the investigation.

So the lady reached out to her local NBC TV affiliate.  It is amazing what a little bad PR can do.  The TV station contacted the Amazon vendor and they apologized and said they would fix the problem.  The TV station confirmed that the offending material was removed.

But this post is not about health jewelry.

It is to clear up a possible misunderstanding on the part of the average consumer.

While Amazon may yet get into trouble for not understanding and complying with HIPAA, this is not a HIPAA issue.

For consumers that use apps and other tech products there is an important lesson here.

Amazon does *NOT* have a HIPAA problem.

In fact, as of today, Amazon’s web site does not need to be HIPAA compliant because they are neither a covered entity nor a business associate under the terms of HIPAA.  Covered entities include organizations like doctors, hospitals and insurance companies.  Business associates are companies that handle HIPAA type information on behalf of one or more covered entity.

That means that they have no HIPAA requirement to protect your personal information.

They *MAY* have a requirement to protect it under state law in your state, but they also may not.  This depends on the particular law in your state.  In this case they may be in more trouble for publishing her birth date (which may be covered under her state’s privacy law) than her medical condition.

It does mean that they have no requirement to protect your healthcare information under Federal law because other than HIPAA, which does not apply here, there is no Federal law requiring anyone to protect your healthcare information that I am aware of.

This also includes Apple, Google and any app that is available on either the Apple or Android stores.  Apple and Google are likely covered entities because of the way their employee health insurance plans work, but that is completely separate from iphones, android phones and apps.

So, if one of those apps collects information from a hospital for you, for example, and makes it available to you, they can certainly use the diagnosis, for example, that you have diabetes to show you ads for diabetes medicine or supplies.

It is also possible (although I think this may be pretty dicey) that they could sell your healthcare data.  Depending on the state that you live in, healthcare data may not be protected AT ALL under the state’s privacy laws.  This is likely because legislators are usually lawyers and lawyers rarely understand tech and often don’t understand privacy and they think that your healthcare data is protected under HIPAA.  it is, but only under certain circumstances.  The net effect is that it MAY BE perfectly legal to sell your health care information.

If anyone thinks differently, please post a reply and I will publish it.

Information for this post came from Health IT Security.

 

Email Breach at Oxygen Equipment Maker Affects 30,000

Oxygen equipment maker Inogen announced that information on 30,000 customers was hacked as an attacker compromised the credentials of an employee.

In the grand scheme of breaches, this one barely registers.  Yes, HIPAA protected information was taken (and Health and Human Services may come after them in say 2021, but it is another example of totally preventable self inflicted wounds.

OK, now that I have sufficiently beaten them up, lets look at what they did wrong.

The company is publicly traded so they need to be SOX compliant.  They should have a Board advising them on issues like cybersecurity, but likely not.  Totally silent on the issue.

The breach went from January 2 to March 14 – certainly not the longest breach, but certainly not the shortest.  I know of an incident recently where a company received indicators of a breach at 6:30 AM one day and had contained and mitigated the breach before 9:00 AM the same day and they are looking to shorten that window.  What kind of monitoring and alerting did Inogen have?  Over two months for the hacker to do the dastardly deed?  Obviously, not good enough.

The stolen emails contained name, address, phone number, email address, date of birth, date of death, Medicare ID number, insurance information and type of equipment.  What is that doing in email?  That belongs inside a secure application or web portal.  Not only is this a HIPAA violation before the breach, it is a privacy breach after the event.  The company is based in California, so the Attorney General may be rattling their cage as well.

The worker’s credentials were compromised and then the attacker logged in. From another country.  Two factor authentication would have neutered the attack and, failing that, conditional access geo-fencing would have stopped the attacker cold.  Where was their CISO?  Do they even have one?

One thing they did right – they disclosed the breach in their latest SEC filings. In light of the SEC’s new cybersecurity transparency rules, that is probably a very smart move (to disclose).  One less party out to sue them.

In the SEC filing the company said they hired a forensics firm and made users change their passwords.  Definitely impressive (not).

They have also turned on two factor authentication.  A little late, but better late than never.

Oh, yeah, they have started training.  Nice.  Would have been nicer years ago.

One challenge is the founders are a few young kids who did not, until this, have many battle scars.

I am guessing they are getting those scars now.

Finally, they say in the SEC filing that they have insurance but it may not cover the costs.  Cyber insurance is good, but you better have enough and the right options.  Depending on what lawsuits happen and what regulators (such as Cali and HHS) go after them, this could cost them a couple of million or more.  Depending on what coverage they have, they could be writing all or part of that check themselves.

As a side note, Airway Oxygen, likely a competitor, told HHS last June that they had a breach affecting 500,000 customers.

Cardionet paid a fine to HHS last year of $2.5 million.  That is just the fine and doesn’t cover any other costs.  With a fine like that, Inogen’s total costs could be in the $3-$5 million range.  If they have a $1 million cyber policy, they will be writing a large check.

Other companies could learn from their lessons.  The learning part is free.  OR, they can wait until their story is in the news.  That can be a tad more expensive!

Information for this post came from Careers Info Security.

The Times They Are A Changin

In spite of all of the data breaches that we see on an almost daily basis, we have seen time and again that the courts have dismissed lawsuits for a variety of reasons.  In many cases, the reason is called lack of standing.

Under U.S. Federal law, standing is based on Article III of the U.S. Constitution.  Article III requires you have injury in fact to your own legal interests, in other words, you have suffered some sort of actual harm.  That only applies to lawsuits filed in Federal court.  This is one reason why credit card companies credit you for fraudulent charges,  No lost money, no harm, no ability to sue.

But judges have been loosening the definition of actual harm over the last few years in light of all of the breaches.

Now the Connecticut State Supreme Court has ruled that there is a DUTY of confidentiality between doctor and patient and patients may sue in cases of unauthorized disclosure of protected health information or PHI.

In this case, the plaintiff was pregnant and asked the doctor not to release information to the father of the child, whom the plaintiff was no longer in relationship with.

The practice received a subpoena and in response mailed a copy of the patient’s medical records to the court.

Only problem is, that wasn’t what the subpoena told the doctor to do.  All it said was that the custodian of the records had to appear before the attorney who requested the subpoena.

HIPAA, which governs the disclosure of medical records, says that records may be disclosed in the case of a subpoena, but only if the patient has received adequate notice or a qualified protective order has been issued.

The doctor did none of these things.

Other state courts are also wrestling with these issues.

So now, at least in Connecticut, patients have an expectation of privacy in their medical records and if doctors and hospitals don’t take that expectation seriously enough, patients do have the ability to sue.

It seems to be that the courts are chipping away at this standing conversation, understanding that people are actually being harmed, even if it is not in a measurable, financial way.

While the Connecticut Supreme Court ruling is not binding in any other states, that does not mean that judges won’t be looking at that ruling.

An important note here – this lawsuit is not based on a breach or a hack.  This was based on an inappropriate action of a staff member in the doctor’s office.  It seems unlikely that if the disclosure was due to a breach that the answer from the court would have been any different, but of course, we don not know.

Information for this post came from Health IT Security.

 

The Price of a Breach? Bankruptcy?

21st Century Oncology,  who bills itself as the world’s largest operator of cancer treatment centers with 179 locations, suffered a breach in 2015, losing control of 2+ million patient records.

According to law firm Motley Rice, they found out about the breach when the FBI notified them – not a great way to start your day – (see here).  The breach, they say, happened a month prior, in October 2015.A

While 21st Century is a bit of a high flyer – started in 1983, they sold out to Vestar Parters for $1 billion in 2008, planned to go public in 2014 but changed their mind and raised $325 million privately instead – they have all the problems of any business.

They filed for bankruptcy earlier this year, citing a bunch of reasons including uncertainty in the health insurance market as a result of the new administration, but also the cost of litigation and the cost of complying with regulations regarding electronic health records – in other words the cost resulting from the breach including setting lawsuits from patients who’s data was compromised and settling claims from Health and Human Services regarding the breach.

Health and Human Services said that 21st Century failed to:

  • Failed to conduct an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of the electronic protected health information.
  • Failed to implement security measures sufficient to reduce risks and vulnerabilities to a reasonable and appropriate level.
  • Failed to implement procedures to regularly review records of information system activity, such as audit logs, access reports, and security incident tracking reports.
  • Failed to have a written business associate agreement before disclosing protected health information to third-party vendors.

In other words, failing to have any kind of reasonable cyber security program.

Last month 21st Century has agreed to pay a fine of $2.3 million in lieu of what HHS could have whacked them with, which is many times that number and:

  • Complete a risk assessment and create a risk management plan
  • Revise policies and procedures
  • Educate its workforce
  • Create and maintain Business Associate Agreements (BAAs) with people it shares patient data with
  • Submit to an internal monitoring plan – HHS’s version of an ankle monitor.

Also, if they fail to execute the corrective action plan all bets are off and HHS can go after them for real civil money penalties.

HHS will supervise this corrective action plan and if they don’t like something that 21st Century has done, like their security policies, for example, 21st Century has 30 days to fix it.

They are also required to engage and pay for an external third party to monitor their progress.  HHS gets to interview and approve this third party.  The assessor will submit a plan to play nanny to 21st Century within 60 days of selection and HHS must approve this plan.  The assessor, according to the terms of the corrective action plan must make unannounced site inspections during the term of the agreement.   The third party must provide an annual compliance report to HHS.

A copy of the agreement can be found here.

While there are other business reasons for filing for bankruptcy, the after effects, including settlements and lawsuits related to the breach are likely an important part of that filing.

While it is not clear to me what the effect of the bankruptcy filing is on lawsuits that not yet come to trial, there is certainly a short term effect of staying them while the bankruptcy court figures things out.  I am also not clear what effect the bankruptcy filing will have on lawsuits that were not filed prior to the bankruptcy filing date.  This could be a way to dramatically reduce their liability, although it certainly would not make them any friends with investors who were affected by the bankruptcy.  21st Century has been involved in a number of lawsuits related to over and fraudulent billing and fees paid to doctors for referring patients to company owned facilities.  Clearly security is only one of many problems they are dealing with.

Apparently the bankruptcy did not stop HHS’ actions including fines and the corrective action plan.

Information for this post came from Dark Reading.