Kusserow on Compliance: CMS to issue new Medicare card to 60 million beneficiaries

New cards will no longer contain Social Security number

Over 2.5 million beneficiaries are victims of identity theft incidents

CMS is readying a fraud prevention initiative that removes Social Security numbers from Medicare cards to help combat identity theft, and safeguard taxpayer dollars.  This is being done to meet the congressional deadline for replacing all Medicare cards by April 2019 that followed the passage of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). CMS will assign all Medicare beneficiaries a new, unique a Medicare Beneficiary Identifier (MBI) number which will contain a combination of numbers and uppercase letters. Beneficiaries will be instructed to safely and securely destroy their current Medicare cards and keep the new MBI confidential. Issuance of the new MBI will not change the benefits a Medicare beneficiary receives and will be designed to help protect against personal identity theft affects a large and growing number of seniors.  According to the DOJ, people age 65 or older are increasingly the victims of this type of crime that now are estimated to affect 2.6 million seniors a year. Two-thirds of all identity theft victims reported a direct financial loss with also the problems associated with disrupting lives, damage credit ratings, and result in inaccuracies in medical records and costly false claims.

New card will be mailed beginning in April 2018 and will use the unique, randomly-assigned MIB number to replace the Social Security-based Health Insurance Claim Number (HICN) currently used on the Medicare card.  Providers and beneficiaries will both be able to use secure look up tools that will support quick access to MBIs when they need them. There will also be a 21-month transition period where providers will be able to use either the MBI or the HICN further easing the transition.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

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Copyright © 2017 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: OCR has a record number of significant settlements so far in 2017

The HHS Office for Civil Rights (OCR) has posted about 2,000 major breaches and more than a quarter million small breaches since 2009. The common denominator for many of the cases in which there was a settlement was that the covered entity or business associate (BA) suffered one or more breaches affecting more than 500 individuals sometime between 2011 and 2013. The OCR has jumped off the 2017 year with a record number of significant settlements. The most recent is CardioNet, a wireless health services provider, who provides remote mobile monitoring of and rapid response to patients at risk for cardiac arrhythmias. The provider entered into a settlement for $2.5 million and implemented a corrective action plan for disclosure of unsecured ePHI on a laptop that was stolen from a parked car. CardioNet had an insufficient risk analysis and risk management processes in place at the time of the theft and their HIPAA Security Rule policies and procedures had not been implemented. The OCR has entered into a number of other significant settlements. Others who paid settlements for violating HIPAA requirements so far this year include Memorial Health Systems ($5.5 million); Children’s Medical Center in Dallas ($3.2 million); MAPFRE, a Puerto Rico life insurance company ($2.2 million); Presence Health in Chicago ($475,000); and Community Provider Network of Denver ($400,000). In all these cases, there was the requirement to take corrective actions.

2016 OCR Results

  • There were 329 Data Breaches greater than 500 Individuals (a new record).
  • 225 OCR Phase 2 of HIPAA compliance audits conducted of covered entities and BAs.
  • No onsite audits were conducted.
  • No findings or notifications from the audits have been made.
  • The OCR intends to use the results from these audits to prepare for a new and better tool in the future.
  • There was a large jump in fines imposed for HIPAA violations that totaled about $24 million (versus a little more than $6 and $8 million in for 2105 and 2014 respectively)

OCR in 2017

  • The OCR stated intention is to conduct only a few onsite audits in 2017.
  • To date the OCR has nearly achieved the level of 2016 in terms of penalties imposed.
  • To date about 100 data breaches impacting greater than 500 Individuals have been reported.
  • About a half million individuals have been impacted in reported data breaches so far this year.
  • Only a relatively few BAs were involved in any of the reported data breaches.

The enforcement actions most often come from the OCR when investigations into the root cause of the breach found systemic, often profound, failures of organizational programs to safeguard protected health information.  This includes the failure to perform an information security risk assessment or to have a risk management plan to address gaps in the safeguards for information systems, both required actions under the HIPAA Security Rule. Tied to this has been insufficient development of policies and procedures for HIPAA Compliance.  Other actionable problems that resulted in the OCR imposing HIPAA corrective action plans (CAP) included inappropriate delay in data breach reporting (reported after 60 days from the date of discovery); and inappropriate oversight into user set up and user management. There is also the continuing problem of organizations not implementing encryption technology on mobile devices.

Camella Boateng, a HIPAA consultant reminds everyone that the recently enacted 21st Century Cures Act amends the HITECH Act to extend an individual’s right to access their PHI to data held by business associates. As such, it is more important than ever that entities give a priority for engaging in a self-audit, so vulnerabilities can be detected and resolved before they come to the attention of the government. Furthermore, with a shifting focus toward BA, it is important to avoid any potential partner that will not commit to signing a BAA.

Strong HIPAA Compliance Program Evidence

  • HIPAA policies and procedures;
  • HIPAA requests forms for patient’s rights;
  • a complete notice of privacy practices;
  • established technical, physical, and administrative safeguards;
  • conducting a regular HIPAA risk analysis;
  • developed a risk management plan to address gaps in the safeguards for PHI;
  • strong workforce education;
  • effective user management and oversight into systems with PHI;
  • auditing practices for verification of compliance;
  • ongoing evaluation of current safeguards established by the organization;
  • strong oversight into user set up and user management;
  • implementing encryption technology on mobile devices; and
  • ensuring partners have signed BAAs.

 

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on
Google+ or LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2017 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: FBI on cybersecurity—advice and tips

The FBI recently made presentations on cyber security at the Boston Conference on Cyber Security and at the American Hospital Association annual meeting. Key points from these presentations included, underscoring that the FBI is the lead federal agency for investigating cyber-attacks by criminals, overseas adversaries, and terrorists. The FBI views cyber threats seriously, as a growing problem as cyber intrusions are becoming more commonplace, more dangerous, and more sophisticated. Both private and public sector networks are targeted by adversaries for trade secrets, sensitive business data, and privacy information. Universities are targeted for their research and development. Individuals are targeted by fraudsters and identity thieves. Children are targeted by online predators. The FBI has been gearing up to the challenges from these threats by enhancing its Cyber Division’s investigative capacity to sharpen its focus on intrusions into government and private computer networks. However, they are struggling against a number of challenges, including finding talented workers in competition with the private sector, and the fact that a majority of cyber-attacks are never reported because parties want to address the problem without getting entangled in an FBI investigation. This hampers their work. The FBI desires to encourage better reporting, emphasizing that the agency has an interest in protecting private information and data; any internal information received will not be used against a provider, as they will be treated as a victim. The FBI recognizes that health care organizations are major targets for cyber-criminals, because the sensitive data they collect in droves can be sold at a high price for use in fraud and identity theft. Medical devices are also increasingly becoming a target.

The FBI is encouraging health care companies to share some basic network information with their local FBI offices, before an attack occurs, and to join an information-sharing group with other companies in their industry. The following observations and advice came from the two FBI presentations:

FBI Advice and Tips

  1. People are “weak links” in cyber-attacks, so train them to recognize and prevent cybercrimes.
  2. Review if everyone with high-level access to a hospital’s database needs to have that access.
  3. It is important to update and patch systems regularly to prevent intrusion.
  4. More people with security access, the easier it is to breach.
  5. Conduct regular systems tests to help flag vulnerabilities before a hacker can gain access.
  6. Develop a business continuity plan to prevent down time.
  7. Establish real-time data backups to permit work to continue.
  8. Organizations should establish closer ties with the local FBI before there is any incident.
  9. Those harmed in a cyber-attack will be treated like victims of a crime.
  10. Called for building a relationship with the local FBI.
  11. Organizations should join information-sharing groups with others in their industry.
  12. Regular systems tests can also help flag vulnerabilities before a hacker can get in.
  13. Don’t assign responsibility for cyber security to someone at a low level in the organization.
  14. Cyber security is an enterprise risk and executive and board level interest is needed.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on
Google+ or LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2017 Strategic Management Services, LLC. Published with permission.

AMA preparing to tackle questions surrounding physician-patient texting

Regulators are serious about privacy and violations of the Health Insurance Portability and Accountability Act (HIPAA) (P.L. 104-191), and crackdowns keep providers on their toes. The evolution of technology provides innovative and efficient ways to practice medicine and communicate with patients, but this evolution brings with it new obstacles that can easily trip up a provider who is not paying close attention. At the end of a long day, a tired doctor might send a quick text to a mother who does not want to bring in her sick child if over-the-counter medicines will do the trick, trying to be as accommodating as possible and truly caring for the patient’s well-being. Both mother and doctor will be relieved that an unnecessary trip was avoided, but is this type of communication appropriate?

The American Medical Association (AMA) provides guidelines for providers on issues just like this one, and the AMA House of Delegates will consider expanding its advice on email communications to include text messaging at a June meeting. Although the AMA maintains that a face-to-face meeting is the foundation of a physician’s relationship with a patient, it recognizes that patients and physicians may prefer text message communications in various settings.

Considerations when texting

As expected, the AMA’s first basic standard of engagement to consider is HIPAA. The Board of Trustees (BOT) recommends discussing obligations under HIPAA’s Security Rule with both information technology (IT) staff and legal counsel. This rule requires that entities transmitting electronic protected health information (ePHI) ensure that these transmissions are confidential and secure. The AMA provides an educational tool to assist providers in achieving compliance with the rule, and HHS offers advice on protecting ePHI when using cell phones.

Providers should keep in mind potential differences in communication with patients, as opposed to colleagues. While doctors and nurses in the same office may think nothing of texting one another, a patient needs to consent to communication. Current guidance indicates that a patient’s initiation of a text conversation may serve as consent, but some providers might obtain written consent that acknowledges risks in such transmissions. Patients should be reminded that security is not guaranteed and that privacy can be breached as easily as someone they know using their phone and seeing a text.

Boundaries

In addition to consent and security issues, the AMA raises several points more along the lines of etiquette but that must be approached within the patient-physician relationship framework. A physician should establish boundaries with patients, such as establishing reasonable response times and appropriate times of day for texting. Additionally, extensive conversations are not recommended, and if a patient requests a lengthy explanation the physician should request that the patient come into the office.

When texting, the AMA recommends keeping a formal tone, cordial but refraining from using jokes, emoticons, or emotionally charged or sarcastic speech. The recommendations even extend to ending texts with the physician’s full name and business affiliation, accompanied by a request to acknowledge receipt of the message. Although it may seem obvious, the AMA also reiterates refraining using identifying information such as name or Social Security number and keeping text records.