What Are the Penalties for HIPAA Violations and How to Avoid Them

  Committing HIPAA violations as a medical worker can lead to a career end. Oddly enough, these violations are quite common and can occur without direct knowledge of the event. HIPAA violations are categorized by tier, severity, and intent. Based on the three factors, the fine and punishment will be variable. In this article, we will cover HIPAA violations in-depth as well as show you how you can avoid the most common of them. Whenever you're ready to take your organization to the next level of HIPAA compliance, keep reading.

What Is HIPAA?

HIPAA is a federal law that ensures compliance with a nationally-recognized standard set that is employed for the secure and confidential digital exchange of personal health information. HIPAA consists of four rules, which are:

  1. The Privacy Rule that protects the type of information shared
  2. The Security Rule that safeguards data and database by securing them
  3. The Enforcement Rule that procedures hearing, enforcement, and penalties
  4. The Breach Notification Rule requires providers to notify all individuals of a breach

However, HIPAA is so much more than just these 4 rules. It's a full-fledged system of protection within the medical industry.

Who Must Follow HIPAA?

The rules allow for maintaining, using, storing, and transmitting medical information among the necessary professionals. For instance, since nurses are privy to such information, they are required to comply. The law enforces that those who must follow the regulations are covered entities. These entities are but are not limited to HMOs, insurance firms, health plans, Medicaid and Medicare, physicians, clinics, hospitals, chiropractors, psychologists, nursing homes, dentists, pharmacies as well as entities that conduct digital business, such as clearinghouses, billing firms. And any entity that receives non-standard health data and processes it into standard formats, or vice versa. In addition to that, business associations of entities covered have to adhere to HIPAA. They are third parties that are part of the workforce of the covered entity. Usually, they are professionals or companies that work as subcontractors or contractors, such as insurance firms, billing companies, record storage/destruction companies.

What Is Covered By HIPAA?

The Privacy Rule identifies protected health information as all data about patients that is stored or transmitted by a covered entity. The PHI is individually identifiable information, which is all data that can point to their identity. This can include but is not limited to their name, address, SSN, birth date, payment history and method, healthcare provision, mental or physical health history, etc.

What Are HIPAA Violations?

In essence, HIPAA violations are variable. They are not the same. There are different tiers of violations that are considered when a penalty is proposed. Not all violations are equal because intentions are factored in. If the act is of will or willfully negligent, the penalty is most likely going to be higher. If the act is unavoidable or accidental, the penalty is going to be lower. The penalties range from being criminal or only financial. It all depends on the intention and nature of the violation as well as the steps that were or were not taken to rectify the situation in an acceptable timeframe.

Tier 1

Tier 1 violations will have the least penalties. These violations are those that cannot be avoided. The person or entity in question might have been ignorant and, potentially even with due diligence, not known about the violation.

Tier 2

Tier 2 violations are not purposeful either. There was an appropriate cause for the violation, and the individual should have known about the violation before it occurred.

Tier 3

Tier 3 violations are evidently more serious. For tier 3, the activity must have been negligent willfully. The violation must have been corrected in a timely fashion, as to soften the penalty.

Tier 4

Tier 4 violations are the most serious. For tier 4, the actions must have been willfully negligent or willful. There is also no attempt to rectify the circumstances.

What Are the Fines?

Fines vary per the violation tier. Each financial fine is proposed per violation, so if multiple occurs, they will add up to a substantial number. For this article, let's entertain a single violation. Civil monetary penalties are always changing, so these fines are subject to change. Tier 1 violations have a minimum fine of $119, and a maximum of $52522. The total maximum that can be proposed per year is $1785651. Tier 2 violations have a minimum of $1191, and a maximum of $59522. The cap for the year is $1785651. Tier 3 violations have a minimum of $11904, and a maximum of $59522. The cap for the year is $1785651. Tier 4 violations have a minimum of $59522, and a maximum of $1785651. For low-level violations, the employee can also be subject to training, observation, or loss of a job. For willful violations, they are certain to lose their position at the company.

Are There Criminal Penalties?

In some cases, there's more to a problem than a simple fine. Some HIPAA violations are identified as criminal offenses, resulting in jail time. Offenses like these are willful and usually cause some harm to someone. For instance, if a medical specialist is sharing PHI for financial gain, this will be a criminal offense. All disclosure or use of PHI has to be covered under the Privacy Rule. Criminal HIPAA violations have their own tier system. In tier 1, the entity must have had reasonable cause for the violation or they were unaware of it. Can lead to a year in prison. In tier 2, the entity obtained PHI under pretense. Can lead to 5 years in prison. In tier 3, the entity obtained PHI for personal gain, or with malicious intent. Can lead to 10 years in prison. Now let's take a look at the most common HIPAA violations, and how you can avoid them.

Lack Of Planning

When it comes to the management of security risk, the adage of "failure to plan is planning to fail" applies directly to most healthcare organizations. The HHS reports that not anyone organization audited has received a full rating of compliance for the performance of an information risk analysis. An even larger number of groups audited had made no attempts or limited attempts to comply with HIPPA by maintaining and establishing a risk management plan. Given the risks of breaches and other hacking of ePHI, organizations have to spend time and resources to consider the risks and how to best avoid them. Conducting a risk analysis and enforcing a management plan is key to HIPAA compliance. It can also address and help identify the common concerned areas of compliance. Having several channels for external and internal communication, such as email, chat or voice can make an organization easier to breach. Instead of data flow management for each channel, healthcare groups can unite patient-care and front-desk operations via cloud communications platform. Using such platforms means the organization has to manage one system, making it easier to be compliant. Performing risk analysis and modernizing systems allow organizations to identify in advance how their data management and communications might be best served with the system.

Lack of Mobile Protection

Medical professionals use mobile devices like laptops and smartphones to collaborate with colleagues and patients as well as manage their daily workflow. While mobility can help improve their patient care by nurses and doctors to work with patients who cannot unable to reach the office. It's another factor that organizations have to manage when it regards HIPAA compliance. To reduce these risks, organizations can develop engineering controls, such as tokenization, encryption, remote wipe. But they can also conduct a risk analysis and implement a management plan as well as ensure business associations have access to such security measures. Finally, they can train employees to use pre-approved secure applications for data exchange. One way to take these steps is by making use of a comms system with integrated metrics for calls so that they can sync their mobile devices with user applications. By funneling all data through a single dashboard, the organization will receive useful information but also require 2FA on all devices. Thus, reducing the risk of non-compliance. With the ability to centralize external and internal communication, as well as improve daily operations and risk management, comms systems are key to HIPAA compliance.

Poor BAA Vetting

Using business associations, such as cloud service, is a necessary and common practice in the health industry. Cloud-service technology can make employees productive, improve patient communications, and save money for the organization. Because HIPPA rules mandate business agreements with 3rd party vendors, it's important to ensure that these agreements meet HIPAA security protocols. A good agreement will protect all parties in the breach event. You must ensure the agreement covers all points of liability. To start, the agreement must acknowledge the covered entities and business associates are to comply with HIPAA. Next, the agreement must include an explicit description of the responsibilities behind breaches of PHI and how they will be held liable for poor management or loss of data. Finally, the agreement must outline how the associate solutions abide by HIPAA or provide HIPAA compliance verification through third-party certifying entities. Developing a solid BAA can help tremendously with the management of compliance risk.

Inefficient Employee Training

A great portion of threats to personal data come from the workforce, making employee negligence the most common cause of non-compliance. Most of these occurrences are accidental, such as device loss, data mismanagement, and misinterpretation of access privilege. Improving employee training is the greatest way to prevent these non-compliance risks. Ensure employees understand the value of HIPAA compliance, as well as the potential penalties for non-compliance. Train them on how to protect devices with 2FA, how to use secure applications, how to avoid breach risks (phishing scams, etc). With the right programs in place, the organization will improve how it manages compliance. The OCR will show no sign of HIPAA compliance abatement. The best defense against audits is meeting HIPAA compliance requirements as well as having a comms system that will ensure coordination. With the ability to central communications, improve daily operations, and risk management, comms systems are the key to healthcare compliance.

Poor Records Disposal

To the naked eye, records disposal seems like an odd cause for HIPAA breach. But, it's quite easy for staff to assume documents don't have PHI. Thus, casually discarding them, which can result in a breach. USB drives or hard drives can continue to hold protected PHI until they are destroyed or wiped. If not accounted for or stored properly between the end-user and where they are wiped, this can lead to a violation. To protect the organization, you need clear and strong policies on device and document handling. You also need to train your staff on the best practices, and potential violations in this area. Without proper records disposal, you risk liability as an organization, and even though your employee might have not known about the violation, the whole firm will be held accountable. Depending on how many times this has happened, the fine can be quite excessive, which can put your business out of commission. HIPAA violations are very unfavored, so get your team trained. Ensure they remain updated on the clauses and check on them to see that they follow suit with the protocol.

HIPAA Training for You

Now that you have discovered what HIPAA violations are, as well as how to avoid them, you are that much closer to ensuring your organization is HIPAA compliant. Nonetheless, it can be daunting to keep track of all the HIPAA rules and clauses. If you're looking to ensure your team is properly trained and HIPAA-aware, get in touch with us and we will happily set you up with one of our specialized programs.

For 2021 Guidelines for Healthcare Workers, please click here. For 2021 Guidelines for Business Associates, please click here.