Book:HIPAA Compliance: An Introduction/Security

Security

In the Health Insurance Portability and Accountability Act of 1996 and its subsequent amendments, collectively known as "HIPAA," both the Privacy Rule and Security Rule were established. There is considerable overlap between the two, and many of the provisions relevant to covered entities have already been covered. However, it is worth examining the Security Rule separately, especially inasmuch as it specifically addresses electronic information and related security measures.

About the Security Rule

The Security Standards for the Protection of Electronic Protected Health Information (the Security Rule) establish a national set of security standards for protecting certain health information that is held or transferred in electronic form. The Security Rule "operationalizes" the protections contained in the Privacy Rule by addressing the technical and non-technical safeguards that covered entities must put in place to secure individuals’ "electronic protected health information" (e-PHI). The OCR, a division of HHS, has responsibility for enforcing the Privacy and Security Rules, using voluntary compliance measures and civil financial penalties.

It's interesting to note that prior to HIPAA, no generally accepted set of security standards or general requirements for PHI existed in the healthcare industry. Yet new technologies were evolving, and the healthcare industry began to move away from paper processes and rely more heavily on the use of electronic information systems to pay claims, answer eligibility questions, provide health information and conduct a host of other administrative and clinically-based functions. The need for those standards and security requirements became more apparent.^[1]

Today, providers are using clinical applications such as computerized physician order entry (CPOE) systems, electronic health records (EHR) or electronic medical records (EMR), as well as radiology, pharmacy, and laboratory information systems (LIS). Health plans are providing access to claims and care management, as well as member self-service applications. While this means that the medical workforce can be more mobile and efficient (i.e., physicians can check patient records and test results from wherever they are), the rise in the adoption rate of these technologies increases the potential security risks.

A major goal of the Security Rule is to protect the privacy of individuals’ health information while allowing covered entities to adopt new technologies to improve the quality and efficiency of patient care. Given that the healthcare marketplace is diverse, the Security Rule is designed to be flexible and scalable so a covered entity can implement policies, procedures and technologies that are appropriate for the entity’s particular size, organizational structure and risks to consumers’ e-PHI.

This is a summary of key elements of the Security Rule and not a complete or comprehensive guide to compliance. Entities regulated by the Privacy and Security Rules are obligated to comply with all of their applicable requirements and should not rely on this summary as a source of legal information or advice. Several portions of the Security Rule overlap with previous sections that discussed both privacy and security, in which case the following information serves to reinforce what you have already encountered. Examine the HHS Security Rule for links to the entire rule and for additional helpful information about how the rule applies. In the event of a conflict between this summary and the rule, the rule governs.

Statutory and regulatory background

It was the Administrative Simplification provisions of HIPAA that required the Secretary of the HHS to publish national standards for the security of e-PHI, electronic exchange, and the privacy and security of health information.

HIPAA called on the Secretary to issue security regulations regarding measures for protecting the integrity, confidentiality and availability of e-PHI that is held or transmitted by covered entities. HHS developed a proposed rule and released it for public comment on August 12, 1998. The Department received approximately 2,350 public comments. The final regulation, the Security Rule, was published February 20, 2003. The Rule specifies a series of administrative, technical and physical security procedures for covered entities to use to assure the confidentiality, integrity and availability of e-PHI.^[1]

The text of the final regulation can be found at 45 CFR Part 160^[2] and Part 164, Subparts A and C.^[3]

Who is covered by the Security Rule

The Security Rule, like all of the Administrative Simplification rules, applies to health plans, health care clearinghouses, and to any health care provider who transmits health information in electronic form in connection with a transaction for which the Secretary of HHS has adopted standards under HIPAA (the "covered entities," discussed prior).

Business associates

HITECH expanded the responsibilities of business associates under the Privacy and Security Rules, as discussed earlier in this guide. HHS is developing regulations to implement and clarify these changes.

What information is protected

The HIPAA Privacy Rule protects the privacy of individually identifiable health information, PHI, as explained in the Privacy Rule and here. The Security Rule protects a subset of information covered by the Privacy Rule, which is all individually identifiable health information a covered entity creates, receives, maintains or transmits in electronic form. The Security Rule refers to this information as e-PHI. The Security Rule does not apply to PHI transmitted orally or in writing.^[1]

General rules

The Security Rule, at its foundation, requires covered entities to maintain reasonable and appropriate administrative, technical and physical safeguards for protecting e-PHI. Specifically, covered entities must^[1]:

ensure the confidentiality, integrity and availability of all e-PHI they create, receive, maintain or transmit
identify and protect against reasonably anticipated threats to the security or integrity of the information
protect against reasonably anticipated, impermissible uses or disclosures
ensure compliance by their workforce.

The Security Rule defines "confidentiality" to mean that e-PHI is not available or disclosed to unauthorized persons. The Security Rule's confidentiality requirements support the Privacy Rule's prohibitions against improper uses and disclosures of PHI. The Security rule also promotes the two additional goals of maintaining the integrity and availability of e-PHI. Under the Security Rule, "integrity" means that e-PHI is not altered or destroyed in an unauthorized manner. "Availability" means that e-PHI is accessible and usable on demand by an authorized person.^[1]

HHS recognizes that covered entities range from the smallest provider to the largest, multi-state health plan. Therefore the Security Rule is flexible and scalable to allow covered entities to analyze their own needs and implement solutions appropriate for their specific environments. What is appropriate for a particular covered entity will depend on the nature of its particular business, as well as its size and resources.

Therefore, when a covered entity is deciding which security measures to use, the Rule does not dictate those measures but requires it to consider^[1]:

its size, complexity, and capabilities
its technical, hardware, and software infrastructure
the costs of security measures
the likelihood and possible impact of potential risks to e-PHI

Covered entities must also review and modify their security measures to continue protecting e-PHI in a changing environment.

Risk analysis and management

The Administrative Safeguards provisions in the Security Rule require covered entities to perform risk analysis as part of their security management processes. The risk analysis and management provisions of the Security Rule are addressed separately here because, by helping to determine which security measures are reasonable and appropriate for a particular covered entity, risk analysis affects the implementation of all of the safeguards contained in the Security Rule.

A risk analysis process includes, but is not limited to, the following activities^[1]:

evaluating the likelihood and impact of potential risks to e-PHI
implementing appropriate security measures to address the risks identified in the risk analysis
documenting the chosen security measures and, where required, the rationale for adopting those measures
maintaining continuous, reasonable, and appropriate security protections

Risk analysis should be an ongoing process, in which a covered entity regularly reviews its records to track access to e-PHI and detect security incidents, periodically evaluates the effectiveness of security measures put in place, and regularly reevaluates potential risks to e-PHI.

Administrative safeguards

The first of the required areas of security has to do with safeguards that are implemented during administration. These take several forms^[1]:

Security management process: As explained in the previous section, a covered entity has to identify and analyze potential risks to e-PHI, and it must implement security measures that reduce risks and vulnerabilities to a "reasonable and appropriate level."

Security personnel: A covered entity must designate a security official, who is responsible for developing and implementing its security policies and procedures. This is similar to the previously mentioned privacy official.

Information access management: Consistent with the Privacy Rule standard limiting uses and disclosures of PHI to the "minimum necessary," the Security Rule requires a covered entity to implement policies and procedures for authorizing access to e-PHI only when such access is appropriate based on the user or recipient's role (role-based access).

Workforce training and management: A covered entity must provide for appropriate authorization and supervision of workforce members who work with e-PHI. All of those workforce members must be trained regarding its HIPAA-compliant security policies and procedures, and the covered entity must have and apply appropriate sanctions against workforce members who violate those policies and procedures.

Evaluation: A covered entity must perform a periodic assessment of how well its security policies and procedures meet the requirements of the Security Rule.

Physical security access control with a fingerprint scanner.jpg

Physical safeguards

The second required area of compliance with the Security Rule is the introduction and maintenance of physical safeguards for PHI. These include^[1]:

Facility access and control: A covered entity must limit physical access to its facilities, but also ensure authorized access.

Workstation and device security: A covered entity must implement policies and procedures to specify proper use of and access to workstations and electronic media. A covered entity also must have in place policies and procedures regarding the transfer, removal, disposal and re-use of electronic media, to ensure appropriate protection of e-PHI.

Technical safeguards

The third area of security designated by the Security Rule is the technical aspect. Technical safeguards fall under the categories of^[1]:

Access control: A covered entity is required to implement technical policies and procedures that allow only authorized persons to access e-PHI.

Audit controls: A covered entity must implement hardware, software and/or procedural mechanisms to record and examine access and other activity in any information systems that contain or use e-PHI.

Integrity controls: A covered entity must implement policies and procedures, and electronic measures must be taken to ensure that e-PHI is not improperly altered or destroyed.

Transmission security: A covered entity must implement technical security measures that guard against unauthorized access to e-PHI that is being transmitted over an electronic network. There are standards that are approved and available, including Health Level 7 (HL7).

Required and addressable implementation specifications

Covered entities are required to comply with every Security Rule "standard." However, the Security Rule categorizes certain implementation specifications within those standards as "addressable," while others are "required." The required implementation specifications must be implemented. The "addressable" designation does not mean that an implementation specification is optional, but it permits covered entities to determine whether the addressable implementation specification is reasonable and appropriate for that covered entity. If it is not, the Security Rule allows the covered entity to adopt an alternative measure that achieves the purpose of the standard, if that alternative measure is reasonable and appropriate.^[1]

Organizational requirements

In some cases, organization-wide action must be taken. Cases include^[1]:

Covered entity responsibility to act: If a covered entity knows of an activity or practice of a business associate that constitutes a material breach or violation of the business associate’s obligation, the covered entity must take reasonable steps to cure the breach or end the violation. Violations include the failure to implement safeguards that reasonably and appropriately protect e-PHI.

Business associate responsibility to act: In the case of a BAA, certain stipulations are required in most cases. HHS is developing regulations relating to business associate obligations and business associate contracts under the HITECH Act of 2009.

Documentation requirements

A covered entity must adopt "reasonable and appropriate" policies and procedures (P&P) to comply with the provisions of the Security Rule. A covered entity must maintain, until six years after the date of their creation or last effective date (whichever is later), written security P&P and written records of required actions, activities or assessments. Additionally, a covered entity must periodically review and update its documentation in response to environmental or organizational changes that affect the security of e-PHI.^[1]

State law

In general, state laws that are contrary to the HIPAA regulations are preempted by the federal requirements, which means that the federal requirements will apply. "Contrary" means that it would be impossible for a covered entity to comply with both the state and federal requirements, or that the provision of state law is an obstacle to accomplishing the full purposes and objectives of the Administrative Simplification provisions of HIPAA.^[1]

Enforcement and penalties for noncompliance

The Security Rule establishes a set of national standards for confidentiality, integrity and availability of e-PHI. The OCR is responsible for administering and enforcing these standards, in concert with its enforcement of the Privacy Rule, and may conduct complaint investigations and compliance reviews.^[1]

The Enforcement Rule's Final Rule is essentially HITECH provisions that strengthen HHS' ability to enforce the Privacy and Security Rules of HIPAA. Some enforcement measures and penalties are discussed in the next section and on the OCR's Enforcement Rule page.

Compliance dates

All covered entities, except "small health plans," must have been compliant with the Security Rule by April 20, 2005. Small health plans had until April 20, 2006 to comply.^[1]