A phishing attack on a HIPAA-covered entity has resulted in a $400,000 penalty for non-compliance with HIPAA Rules. This is not the first time a phishing attack has attracted a penalty from OCR for non-compliance.
The failure to prevent phishing attacks does not necessarily warrant a HIPAA penalty, but failing to implement sufficient protections to prevent attacks could land HIPAA-covered entities in hot water.
HIPAA Compliance and Phishing
The U.S. Department of Health and Human Services’ Office for Civil Rights is tasked with enforcing Health Insurance Portability and Accountability Act Rules. While OCR conducts audits of covered entities to identify aspects of HIPAA Rules that are proving problematic for covered entities, to date, no financial penalties have been issued as a result of HIPAA violations discovered during compliance audits. The same is certainly not the case when it comes to investigations of data breaches.
OCR investigates each and every data breach that impacts more than 500 individuals. Those investigations often result in the discovery of violations of HIPAA Rules. Any HIPAA-covered entity that experiences a phishing attack that results in the exposure of patients’ or health plan members’ protected health information could have historic HIPAA violations uncovered. A single phishing attack that is not thwarted could therefore end up in a considerable fine for non-compliance.
What HIPAA Rules cover phishing? While there is no specific mention of phishing in HIPAA, phishing is a threat to the confidentiality, integrity, and availability of ePHI and is covered under the administrative requirements of the HIPAA Security Rule. HIPAA-covered entities are required to provide ongoing, appropriate training to staff members. §164.308.(a).(5).(i) requires security awareness training to be provided, and while these are addressable requirements, they cannot be ignored.
These administrative requirements include the issuing of security reminders, protection from malicious software, password management and login monitoring. Employees should also be taught how to identify potential phishing emails and told about the correct response when such an email is received.
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The HIPAA Security Rule also requires technical safeguards to be implemented to protect against threats to ePHI. Reasonable and appropriate security measures, such as encryption, should be employed to protect ePHI. Since ePHI is often available through email accounts, a reasonable and appropriate security measure would be to employ a spam filtering solution with an anti-phishing component.
Given the frequency of attacks on healthcare providers, and the extent to which phishing is involved in cytberattacks – PhishMe reports 91% of cyberattacks start with a phishing email – a spam filtering solution can be classed as an essential security control.
The risk from phishing should be highlighted during a risk analysis: A required element of the HIPAA Security Rule. A risk analysis should identify risks and vulnerabilities that could potentially result in ePHI being exposed or stolen. Those risks must then be addressed as part of a covered entity’s security management process.
HIPAA Penalties for Phishing Attacks
OCR has recently agreed to a settlement with Metro Community Provider Network (MCPN), a federally-qualified health center (FQHC) based in Denver, Colorado following a phishing attack that occurred in December 2011. The attack allowed the attacker to gain access to the organization’s email accounts after employees responded by providing their credentials. The ePHI of 3,200 individuals was contained in those email accounts.
The fine was not exactly for failing to prevent the attack, but for not doing enough to manage security risks. MCPN had failed to conduct a risk analysis prior to the attack taking place and had not implemented security measures sufficient to reduce risks and vulnerabilities to a reasonable and appropriate level. OCR settled with MCPN for $400,000.
In 2015, another covered entity ended up settling with OCR to resolve violations of HIPAA Rules following a phishing attack. University of Washington Medicine paid OCR $750,000 following the exposure of 90,000 individual’s ePHI. In that case, the phishing attack allowed attackers to install malware. OCR Director at the time, Jocelyn Samuels, pointed out “An effective risk analysis is one that is comprehensive in scope and is conducted across the organization to sufficiently address the risks and vulnerabilities to patient data.” She also said, “All too often we see covered entities with a limited risk analysis that focuses on a specific system such as the electronic medical records or that fails to provide appropriate oversight and accountability for all parts of the enterprise.”
Covered entities are not expected to prevent all phishing attacks, but they must ensure the risk of phishing has been identified and measures put in place to prevent phishing attacks from resulting in the exposure of theft of ePHI. If not, a HIPAA fine may be issued.