Category Archives: www.caroline-hamilton.com

Has it Been Only Two Weeks since the Navy Yard Shootings?

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When i wrote my blog about the Shootings at the Washington Navy Yard on September 16th, I got some nasty notes about “Why did you have to write about this so soon after it happened?”

Well – I guess the fact that after about 15 days, no one can even remember the incident (8 people shot to death); the name of the shooter (Aaron Alexis), or much of the details.  It seems that people have decided that it was a mentally distributed person, so couldn’t have been prevented.  This is completely wrong.

One of the issues that security directors have is how to make their organization aware of the active shooter threat without terrifying them.  How do you get a large group of people out of the “It can’t happen here” mindset?   One of the main ways to bring an issue back home is by using the incident as a security awareness notice.

Write a “Lessons Learned” email and send it to everyone in the organization.  Follow it up with a purse and wallet card with reminders on what to do when faced with an Active Shooter situation.

NavyYard-smallKeep everyone informed on what happens after the incident – how the injured are doing, and more importantly, what changes the organization has made to ensure that it won’t happen again.

Try doing a simple threat-risk assessment to illustrate to management what the chances of having an active shooter incident actually are, based on the industry, the region, and the number of problems/complaints that employees have expressed in the past.

Don’t let anyone forget that this can happen to any organization, no matter how well funded, or how secure they think they are.  Remember, if it could happen in a DOD military facility – it could happen to YOU!

What Happens if OCR Shows up – Asking about your HIPAA Compliance?

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With only 2 weeks (15 days) left to meet the HIPAA Omnibus Rule, let’s say you have
done everything you could possibly do, to be in full compliance with every part of HIPAA:

1.  Finish a current HIPAA Risk Analysis – CHECK
2.  Rewrite Business Associate agreements – CHECK
2.  Rewrite Policies & Procedures – CHECK
3.  Get PHI off the office copiers – CHECK
4.  Gather Documentation in one place – CHECK
5.  Start HIPAA Security Awareness Program – CHECK
6.  Update HR Sanctions Policies – CHECK
7.  Finalize Contingency Plans – CHECK
8.  Add more encryption – CHECK
9.  Implement Plan for Smartphones & Mobile  Devices – CHECK
10. Have staff sign new affirmation Agreements – CHECK

And in spite of your careful preparation, you walk into work on Monday, and the regulators from
OCR are sitting in the Lobby, and they’ve been there since 7:00 AM!

No matter what else you have done, or started, and have not done, your insurance policy is to be
able to pull out your most current (in months, not years) HIPAA Risk Analysis and then pull out all
your supporting documentation including:

1. All information, including network diagrams, on where the PHI is on your network, and the automated
network controls you have implemented.

2.  A record of every application, every database, etc. that hold PHI, are used to create, manage, or
share PHI, in both electronic and paper form.

2.  Rosters going back 3 years of everyone in the organization who’s taken HIPAA training.

3.  A copy of the Policies and Procedures, and Security Plans, printed out and labeled in 3-ring
Binders.

4.  List of all HIPAA controls that are currently in place and verification documents.

5.  Copies of all Business partners agreements and contracts

6.  A notarized statement signed by the Board Director, CEO or Administrator re-stating
the organization’s Commitment to HIPAA Security & Privacy & Omnibus Rules..

7.  Copies of recent employee surveys validating their stated compliance with all HIPAA
Security,  Privacy, and Omnibus rules.

All of these elements should be printed in their most current versions and put in D-Ring
binders, which you will pull out of a cabinet designed for high security.  Nothing thrills a regulator
or auditor more than getting everything you ask for in a neatly labeled, giant 3-ring binder.

It says “PREPARED”  in a way that having files on the network never will.

And, BTW, you HAVE completed all these steps – right?

 

 

 

 

HIPAA COUNTDOWN – 26 DAYS LEFT TO COMPLY WITH HIPAA OMNIBUS RULE!

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The HIPAA Countdown continues, with the HIPAA Omnibus Rule compliance date of September 23rd looming in the distance.

Now that everyone is coming back to work, relaxed from the long weekend (we hope), it’s time to get back to work.

As a HIPAA Risk Analysis expert, I have gotten more than 300 calls and emails in the last 5 days (yes, even on Sunday) about
what NEEDS to be done right now.   Here’s a sample of the questions,

“Should I do a penetration test before Sept 23rd?”
“Should we update our policies before Sept. 23rd?”
“Should I hurry and get the laptops encrypted by Sept 23rd?” 
“We re-wrote our business agreements – what else do I need to do before Sept. 23rd?

To quote Leon Rodriguez, the Director of the Department of Health and Human Services, Office of Civil Rights, which is
the lead federal agency for HIPAA Enforcement, “The Number One Thing you need to do before September 23rd
is to update, or start a new HIPAA Risk Analysis.”  

According to the OCR Guideline on Risk Analysis,  “Conducting a risk analysis is the first step in identifying and
implementing safeguards that comply with and carry out the standards and implementation specifications in the Security
Rule. Therefore, a risk analysis is foundational, and must be understood in detail before OCR can issue meaningful
guidance that specifically addresses safeguards and technologies that will best protect electronic health information.”

This is why the First Area that OCR will address when they visit is:  “Where is your HIPAA Risk Analysis?”

Where is yours?  And has it been updated lately?

And did you know that Leon Rodriguez is on Twitter!  His twitter handle is @OCRLeon.

 

 

 

Why HIPAA Compliance is Related to Federal Contracts

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Most healthcare organizations take Federal money – whether it’s reimbursement for Medicare services, or if it’s a federal grant for
providing special care or even addiction treatments, or whether they are part of an NIH trial, or receiving grant money for research.

If your organization is part of state government, county government or even city government, your organization probably takes federal money too.

When the hospital, clinic or treatment center gets that Federal check, they have to first sign a contract saying they verify that they are in compliance WITH ALL FEDERAL LAWS, RULES AND GUIDELINES.  In the old days, this may have meant that you didn’t discriminate in your hiring policies, or that you complied with the Americans with Disabilities Act (ADA), or that you complied with federal reporting requirements, like for a GSA Contract, or for billing protocols.

But HIPAA is also a law, and a Federal Rule, and so when you signed that contract, you attested, or ‘represented’ that your organization was in compliance with all the HIPAA laws and rules, too.

I recently talked to a CEO of a large hospital that, as a Level 1 trauma center, received millions of dollars each year from the Federal government – and he wasn’t aware of their HIPAA status!  He didn’t know if a HIPAA risk analysis had been done (it hadn’t), or whether they had amended all their business associate agreements (hadn’t even started), and also had no idea that some of these HIPAA Rules had elements that needed to be formally approved by the Board.

If you’re the HIPAA Compliance Officer, the Privacy Officer, the Information Security Officer, or any functional title that means, the HIPAA Buck stop with you — you need to explain this to your manager or director.  This will get any administrator’s attention, because they don’t want to have to give any of that money back, and they also don’t want to get into a lawsuit over a compliance issue.

So keep talking about that HIPAA Compliance deadline of September 23, 2013, and you’ll get the support you need, and maybe the budget you need to keep all your HIPAA activities in full swing!

 

How to Easily Update your HIPAA Business Associate Agreements Before Sept. 23, 2013

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One of the major changes for every business involved with the new HIPAA Omnibus Rule is that you are required to 
“Review and,  if Necessary, Amend Business Associate Agreements”
Whether your organization is defined as a Hospital, a Physician Practice, a Group Health Plan, a Managed Care organization, a Pharmacy, a Dental Office, or any kind of “Covered Entity” (CE), you have to change your business agreements with all the people who access, create, manage, store, or view your Protected Health Information (PHI).
The new HIPAA Omnibus Rule (45 CFR § 164.314(a) and .504(e)) added new elements that require you to adjust the Business Associate agreements to make sure they agree (in writing) to comply with the HIPAA Security Rule, to make sure they perform their own Risk Analysis to assess how they protect PHI.
Covered entities and business associates must ensure that their existing and future agreements contain the elements required by . In addition to previous requirements, the agreement must require the business associate to:


1.  Comply with the security rule.

2.  Execute business associate agreements with their subcontractors. 

3.  To the extent the business associate carries out an obligation of a covered entity, comply with any HIPAA
      rule applicable to such obligations.

4.  Report breaches of unsecured protected health information to the covered entity (organization).
If you’re not sure how to adjust all these agreement, DHHS-OCR has updated sample business associate language for you
to use at :  http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/contractprov.html.

The HIPAA Omnibus Rule has made accountability more important because it says that the Covered Entity (CE) is

are liable for the misconduct of business associates if the business associate is acting as the agent of the covered entity.

In the same way, business associates should review their agreements with their Covered Entities and also their Sub-Contractors to make sure that the language in their contracts is up to date and makes it clear that the subcontractors are acting as independent contractors and not as the agents of the covered entity or business associate, and that the agreements do not give the covered entity too much control over day-to-day operations of you, their business associate.

As of today, August 19, 2013, both the Healthcare Provider (CEs), and the Business Associates have 34 more Days to modify these agreements modified and up to date, making sure they match the new HIPAA Omnibus Rule if :

(1) the agreement they had in place on January 25, 2013, complied with the HIPAA rules as of that date, and

(2) the agreement does not expire or renew (other than through evergreen clauses) prior to September 23, 2014!

So get out those pencils, and those agreements and start reviewing, amending and modifying those agreements!
SPECIAL TIP:  Here’s a web site with sample Business Associate language to use as a resource:
  http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/contractprov.html

Photocopier Misuse Triggers $1.2 Million Dollar Fine for Affinity Health

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A HIPAA fine of $1,215,780 has been assessed against Affinity Health Plan,  a not-for-profit managed care plan serving the New York metropolitan area.  The Settlement was announced on August 14, 2013 at 11 pm.

This is the first settlement involving a copier.  Affinity Health Plan had a copier that they returned to the vendor, and it was re-sold to CBS Evening News, without erasing all the files that the printer had stored for year.

CBS News found that the hard drive of the used copier contained health records of The new copier owner found the files and it was determined that over 344,579 individuals had their Protected Health Information exposed by the Breach, which was initially reported in April of 2010.

Affinity impermissibly disclosed the protected health information of these affected individuals when it returned multiple photocopiers to leasing agents without erasing the data contained on the copier hard drives.  In addition, the investigation revealed that Affinity failed to incorporate the electronic protected health information (ePHI) stored on photocopier hard drives in its analysis of risks and vulnerabilities as required by the Security Rule, and failed to implement policies and procedures when returning the photocopiers to its leasing agents.

In addition to the $1,215,780 payment, the settlement includes a corrective action plan requiring Affinity to use its best efforts to retrieve all hard drives that were contained on photocopiers previously leased by the plan that remain in the possession of the leasing agent, and to take certain measures to safeguard all ePHI.

The settlement included violations of both the HIPAA Privacy and HIPAA Security Rule.  Increases in audits and, subsequently, fines at other healthcare organizations are expected to increase after the new HIPAA Omnibus Rule goes into effect on September 23, 2013.

To read the entire Department of Health and Human Servies (HHS)  Resolution Agreement and Corrective Action Plan can be found on the OCR website at http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/affinity-agreement.html.

 

The Top 5 Reasons Why You May Not Be HIPAA Compliant!

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After updating the HIPAA Law (HIPAA Omnibus Rule) in 2013, and a new Enforcement Deadline
coming up on September 23, 2013, some organizations still aren’t HIPAA compliant!   With over
22,000,000 disclosures of Protected Health Information already, what are the five most common
reasons why your organization isn’t compliant!

1. No HIPAA Risk Analysis – maybe you were too busy, or maybe you weren’t sure what a risk
analysis really is.   A HIPAA Risk Analysis,  (according to the Office for Civil Rights for the Department
of Health and Human services) is: Conduct an accurate and thorough assessment of the potential
risks and vulnerabilities to the confidentiality, integrity, and availability of electronic protected
health information held by the organization.

2.  The HIPAA Risk Analysis is out of date — maybe you did it five years ago, which was BEFORE
the new HIPAA Omnibus Rule was mandated.  Maybe you wanted to update it, but you got busy
with all the other pressing IT issues.  Maybe you didn’t have the right resources to run a risk analysis.

3.  HIPAA Risk Analysis was too focused on technical elements.  Many information security
managers think that “IT people always know best”, and as far as HIPAA goes, that’s not correct.
HIPAA rules need to be followed by the medical staff, by the medical records people, by the human
resources department, and by everyone who handles or accesses PHI (protected health information).
And the Risk Analysis has to reflect input from all these different roles.

4.  No correlation between the HIPAA Risk Analysis Recommendations and the changes
that were made after the HIPAA Risk Analysis was completed.  The HIPAA Security controls should
have been implemented in conjunction with the Risk Analysis, not added completely independently.
The Risk Analysis should be a road map, not a boring report that ended up locked in a file cabinet somewhere.

5.  Inadequate training and security awareness program.   In a recent HIPAA Risk Analysis,
the individuals surveyed said they had a few hours of HIPAA training when they joined the company,
but nothing since.  Next question, how long had they been with the organization, and they said,
six years, twelve years, fifteen years, and yet they had never had UPDATED HIPAA Training
or even access to a security awareness program.

Don’t find out you’re not HIPAA Compliant, when a federal regulator is sitting out in the lobby.
BE PRO-ACTIVE and start your HIPAA Risk Analysis today.  To get started, send your questions to caroline@riskandsecurityllc.com, or review the OCR Guidelines for HIPAA Risk Analysis at:
http://www.hhs.gov/ocr/privacy/hipaa/administrative/securityrule/rafinalguidancepdf.pdf

My Pool got Hit by Lightning – Are You Next?

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My swimming pool got hit by an adjacent lightning strike!   The lightning strike hit a tree about 6 houses down from my home in Maryland.  I heard the lightning strike at the time (midnight), and I still remember that it was so loud the beagles dived under the bed.

But the next morning, when I woke up, I looked out from my 2nd floor window and saw something that looked like two fried eggs floating in the pool.  It took me about 2 minutes to realize that they were the pool lights, floating in the pool, still tethered by the electrical lines.

The lightning strike was so sharp and close that it broke the lights out of their plaster enclosures and now there they were, fully electrified, floating right in the water.  It took me eight calls to find someone who would come and fix the lights, turn off the electricity and get the lights out of the pool.

If a lightning strike could do that from 6 houses away, what could it do to a person? Because it’s Lightning Safety Week, I looked up some interesting stats from the National Weather Service – check out these stats:

Your chance is being struck by lightning in your lifetime is 1 in 3000!

From 2006 – 2012, about 2300 people were struck by lightning and 238 people were struck and killed by lightning in the US.

2/3rds of the deaths were to people enjoying outdoor leisure activities.

82% of all fatalities were to men.

70% of the lightning deaths occurred in the months of June, July, and August.

Only 10% percent of people struck by lightning actually die, but 70% of those that survive

a lightning strike have serious long-term effects from the strike, including fear, depression and debilitating physical injuries.

STAY SAFER THIS SUMMER, and teach these tips to your kids, too.

  • Get out of pools, away from beaches, lakes or ponds.

  • Never stand by a tall tree during a lightning storm

  • Drop or get away from metal objects like golf clubs, umbrellas, etc.

  • Get indoors or into your car if you can’t get inside.

  • Stay indoors for 30 minutes after the last flash you see.

 

And have a wonderful, active summer?

NSA Hearings on the Hill

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NSA is answering questions this morning about their mega data collection of phone call destinations, before the House Intelligence Committee.

Having worked with NSA for years, I decided to watch the hearings and hear what General Keith Alexander had to say.   Of course, I have a family history with congressional hearings.

For myself, I’m in total agreement with NSA that they should be LISTENING, COLLECTING and ANALYZING intelligence so we can know what is happening all over our complex world and be in a position to prevent catastrophic attacks by those terrorists using their religion like a free pass to kill, maim and attack.

My father died over ten years ago, but one of my favorite memories of him is that is, while he was suffering from cancer, he never missed a Congressional hearing.  He sat with a TV Tray in front of him, with a stack of monogrammed notepaper, envelopes and stamps.

As the hearings progressed (I especially remember him watching Iran-Contra), he would write to each of the congressmen and senators, telling them how he judged their questions, writing to them about mistakes he thought they made.  This was true democracy in action.  From his pen right to the powers-that-be.    And he took his responsibility in this very seriously.

I hope everyone starts watching, learning and taking their role in our democracy as seriously!  An attention-seeking junior technician is having his 5 minutes of fame, and I hope that the great work of the US intelligence community is not going to be slowed down or damaged by his thoughtless disclosures. He should start writing letters to HIS elected representatives.

 

Benghazi Hearing Demonstrates Attack Uncovered A Fatal Lack of Coordination & Funding for Embassy Security

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Just two weeks ago, we were talking about the lack of coordination between DHS agencies and known intelligence on the brothers responsible.

Now we have the Benghazi Senate hearings, and here is the same problem again – lack of coordination between different parts of the State Department, and with the Defense Department, AND with the CIA and the intelligence community.

Add to this, the appalling cuts in funding for diplomatic security, and a flawed process about what needs to be done about security and protection to our embassies around the world.

“In these tight budget times, the committee has had to make some tough choices to prioritize funding.”, said a GOP aide in The Hill article (GOP cuts to embassy security draw scrutiny), by Alexander Bolton on September 18, 2012.   In spite of the uncertainly of the Arab Spring, the demonstrations every Friday in streets from Bahrain to Tunesia, the embassies had their budgets cut.

Of course, security experts are used to this, security doesn’t directly generate revenue, and it is often one of the first functions on the chopping block.  However, to cut funding to the critical embassy functions in this volatile environment, is obviously a very bad decision on the part of the GOP.

For example, the security risk assessment which are routinely done on these embassies are not done on a systematic basis.  As a risk expert, these security risk assessments should be done WEEKLY, and they should be automated so they can instantly be compared to environments in other embassies, and comparisons made by month, by year, and trends can be tracked.

If we can’t afford to do these assessments and just as important, if we can’t afford to fix the problems that assessments reveal, then we should not have embassies in these places.

The security risk assessments that are done properly must also include complete threat assessments.  “We need to develop a paradigm for managing risk“, said Gregory Hicks, a Foreign Service Officer who testified today on Capitol Hill.

These paradigms for managing risk already exist and they have been totally ignored by the State Department, which makes it almost impossible to get a clear, unfiltered view of the security situation at any embassy, at any point in time.

At least both sides of the political aisle agree, we do not want this to happen again!  Benghazi is not a political problem, it is a massive security failure problem!