HIPAA Compliance Liability: Who Is Responsible?

The Health Insurance Portability and Accountability Act (HIPAA) establishes standards for protecting sensitive data. In recent times, the mental health care industry has been digitalized. The advent of telehealth, and e-prescription has made several health care providers use cloud services. As a result, it is crucial to get informed on HIPAA compliance, its importance and HIPAA compliance liability.

Who Is Responsible Under HIPAA?

Without the knowledge of responsibility, compliance is unattainable. HIPAA saddles two parties with the responsibility of compliance. These entities are the “Covered Entity” and “Business Associates”.

Covered Entities

Covered Entities play a crucial role in HIPAA compliance. They have the direct responsibility for ensuring HIPAA compliance in their activities. HIPAA classifies Covered Entities into three:

1. Health Plans

Health Plans are individuals, organizations or groups that provide or finance medical care. This includes Employer-sponsored health plans, health insurance companies and health maintenance organizations (HMOs). Military and veterans health programs including government programs that pay for healthcare are also classified as Health plans.

2. Healthcare Providers

Healthcare providers are people who supply healthcare services. They often provide these services in exchange for money. Examples of persons in this category are psychologists and other mental health practitioners. Doctors, Clinics and  Hospitals are also classified as healthcare providers.

3. Healthcare Clearinghouses

Healthcare Clearinghouses serve as intermediaries between healthcare providers and health plans. They help process non-standard information in a standardized electronic format. Examples of Healthcare clearinghouses are Billing services and Repricing companies.

Roles Of Covered Entities

1. Ensuring Client Privacy

Covered Entities are to protect PHI and limit its use to the least necessary standard. HIPAA stipulates that this can only be for treatment, payment, or healthcare operations. But, there are exceptions in which clients could grant permission for their PHI to be used.

2. Implementing Security Measures

Covered Entities need to install controls to protect Electronic Protected Health Information (ePHI). These controls could be either administrative, physical, or technical. For example, Administrative control could mean ensuring regular risk assessments and employee training. A privacy officer or security officer must be involved and saddled with the responsibility for maintaining security.

3. Maintaining Compliance Documentation

Covered Entities must always document compliance measures they have put in place. These measures include their policies, risk assessments, and incident reports. Documentation of compliance efforts is essential in ensuring compliance. Additionally, it shows the readiness of the organization for external audits.

4. Employee Training and Documentation

Compliance with HIPAA rules is incomplete without regular employee training. Covered Entities are to ensure their staff are educated about HIPAA. They are also to enlighten their workers on their role in protecting PHI. HIPAA compliance responsibility can also be delegated to a member of the workforce, an assigned team or completely outsourced to a third party organization. However, these personnel must be trained on the best practices for HIPAA compliance.

5. Reporting Breaches

When a breach occurs, Covered Entities are to escalate as soon as possible. They are to ensure affected clients and the Office for Civil Rights (OCR) are aware of the turn of events. In some cases, they are to make media publications and announcements to that effect. Breach reporting is an essential task because it helps mitigate risks and maintain trust.

Business Associates

Business Associates handle functions involving PHI on behalf of a covered entity.  Business Associates include third-party consultants and auditors. Billing and coding companies are also classified as Business Associates.

Other Business Associates under HIPAA include- Practice management services, EHR providers, Consultants, Medical device manufacturers, Pharmacy benefits managers, Lab testing facilities, Collections agencies, Cloud service providers, Data storage firms, IT consultants, Law offices or accounting firms, Transcriptionists and Service provider referral services.

Roles of Business Associates

1. Safeguarding PHI

Just like the Covered Entities, Business Associates are expected to protect PHI. This will require them to use administrative, technical and physical security measures. They might need to perform encryption and use secure access controls. It is also necessary for them to have robust incident response plans.

2. Signing Business Associate Agreements (BAAs)

At the commencement of the contract, Business Associates are to sign a BAA with Covered Entities. The contract would emphasize the responsibilities of the Business Associate in HIPAA compliance. It will also highlight permissible uses and disclosures of PHI. Most times, the BAA outlines breach notification procedures. Without a BAA, Covered Entities are not permitted to share PHI with a Business Associate.

3. Risk Assessment and Audits

At intervals, Business Associates are to conduct risk assessments. This will help them identify vulnerabilities in the handling of PHI. Business Associates are also expected to document their compliance efforts. In cases where they use subcontractors, they should ensure the compliance of subcontractors.

4. Breach Notification

Business Associates are expected to escalate breaches within a specified period. However, their report would be to the Covered Entity, not the public. In the report, Business Associates are to include detailed information about the breach. It should state the nature of the data involved and the mitigation steps that have been employed.

5. Employee Training

Without regular training, employees are likely to lose sight of HIPAA requirements. Hence, Business Associates are to conduct periodic training for their employees. These training sessions should expose them to HIPAA requirements and how to handle PHI. It should also expose them to the importance of security measures. To prevent zero-day attacks, they need to constantly update the training manual regularly.

Key HIPAA Requirements and Compliance Best Practices For Psychotherapists

Complying with the HIPAA rules and regulations requires a proactive approach. Below are some of the best practices for mental health professionals:

1. Conduct Regular Risk Assessments

Healthcare practitioners should ensure to conduct risk assessments regularly. This helps to identify vulnerabilities in handling PHI. Recognizing these vulnerabilities early enables you to fix them before they are exploited.

2. Encrypt Your Data

Encrypting ePHI minimizes the interference of unauthorized parties. If the data is intercepted, unauthorized parties won’t be able to read the data.

3. Conduct Regular Employee Training

Employee training cannot be a one-off. It has to be an ongoing process. This would ensure that security best practices become instinctive to employees. The training should cover basic safeguards like secure communication. It should also teach employees how to recognize phishing attempts and handle breaches.

4. Enforce Access Controls

PHI should only be accessible to personnel and staff who need to use it. You could use access controls like Multi-factor authentication and unique user IDs. Also, track your logs regularly to detect unauthorized data access attempts.

5. Develop Clear Policies and Procedures

Develop clear policies that govern how PHI is handled. The policy document should clearly state how to respond to data breaches. It should also highlight device management best practices and proper data disposal. This document should be constantly reviewed and updated at intervals.

6. Audit and Watch Systems

Periodic system audits will help you identify and contain irregularities early. Most times, automated systems pop alerts when they observe unauthorized actions. But if there is no one to check the logs, such alerts won't be addressed early.

7. Use HIPAA-Compliant Telehealth Platforms

When conducting remote therapy sessions, ensure the use of HIPAA-compliant telehealth platforms. As a therapist, you can also ensure to use a HIPAA-Compliant Note Taking App like Mentalyc or a HIPAA Compliant Scheduling software to assist in your private practice. These platforms will provide you with a secure and encrypted environment for secure data management.

Conclusion

HIPAA compliance liability is a shared responsibility between Covered Entities and Business Associates. To avoid violations, organizations and individuals need to adopt a proactive method of protecting client data. With a proactive approach, healthcare practitioners can protect themselves from security breaches.

FAQs

Is HIPAA Compliance Compulsory or Voluntary?

HIPAA Compliance is compulsory for every covered entity and business associate involved in the management of Protected Health Information (PHI).

What are the Leading Causes of HIPAA Violations?

Some of the leading causes of HIPAA violation include - hacking and cyberattacks, loss of devices with unencrypted PHI, non-compliance with the breach notification rule and failure to conduct risk assessments.

Who Handles Notifying Clients When There is a Data Breach?

Covered Entities are primarily responsible for informing clients when there is data breach. When the breach is from the Business Associate, they are to inform the Covered Entity promptly.

What Is The Role of the Office for Civil Rights (OCR) In HIPAA Compliance?

OCR handles enforcing HIPAA regulations. It investigates complaints, conducts compliance audits and penalizes personnel that violate HIPAA regulations.

Are Service Cloud Providers Subject to HIPAA Liability?

Absolutely. Cloud Service Providers that handle PHI are considered Business Associates. So, they must follow HIPAA.

Can Subcontractors of Business Associates Be Held Liable?

Yes. If Subcontractors of Business Associates handle PHI, they are subject to HIPAA compliance. However, the Business Associate must ensure they sign a BAA before the start of the contract.

What Penalties Can Entities Face for HIPAA Non-Compliance?

Healthcare providers could face different consequences for non-compliance with HIPAA. These consequences could be financial, or legal depending on the size of the breach.