HIPAA, HITECH, and state laws all impact the responsibilities of health care providers and their business associates regarding the treatment and disclosure of confidential medical and health records.
The HIPAA Security Rule, in particular, requires that covered entities must keep electronically-stored protected health information in a manner that maintains the records’ confidentiality, integrity, and availability. Covered health care providers must carefully identify potential risks and vulnerabilities and protect against reasonably-anticipated threats or hazards to the security of confidential information. They must protect against reasonably anticipated impermissible uses or disclosures and ensure compliance by their employees. The Security Rule requires covered entities to provide access to usable electronically-stored protected health information to authorized persons on demand. Business associates of HIPAA-covered entities, who are not covered entities themselves, also face increased responsibility under the HITECH Act of 2009 to securely maintain and handle protected health information. To avoid steep fines and the growing possibility of civil liability, covered entities and their business associates should be informed and proactive regarding their evolving responsibilities with respect to protected health information.
The Security Rule does not dictate specific protection measures, but instead allows each covered entity to develop its own measures considering its size, complexity, and capabilities; its technical infrastructure; costs; and the likelihood and possible impact of inadvertent disclosures of protected health information. Entities must properly document their chosen safety measure. Importantly, however, it is not enough for an entity to adopt security standards; instead, those standards must actually be assessed, implemented, and followed. The Security Rule requires that security measures be updated and documented “as needed.” While the Rule does not state how frequently risk analysis must be performed, regular review and modification of security measures is undoubtedly key in ensuring HIPAA compliance. Security assessments and training should take place on an ongoing basis, and legal audits in compliance are advisable on a periodic basis or when an entity has experienced a security incident, a change in ownership, or a turnover in key staff, or when the entity is planning to incorporate new technology.
For more information, contact board-certified health care attorney Scott Chase.