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HIPAA non-compliance enforcement penalties

- Not complying with HIPAA can lead to a range of Office for Civil Rights (OCR) enforcement and penalties. It’s critical for healthcare organizations to know the exact Privacy Rule language and stipulations that the OCR will be enforcing at some point later in 2013.

Compliance: The Standards for Privacy of Individually Identifiable Health Information (Privacy Rule) establishes a set of national standards for the use and disclosure of an individual’s health information – called protected health information – by covered entities, as well as standards for providing individuals with privacy rights to understand and control how their health information is used.  The Department of Health and Human Services, Office for Civil Rights (OCR) is responsible for administering and enforcing these standards and may conduct complaint investigations and compliance reviews.

Consistent with the principles for achieving compliance provided in the Privacy Rule, OCR will seek the cooperation of covered entities and may provide technical assistance to help them comply voluntarily with the Privacy Rule.  Covered entities that fail to comply voluntarily with the standards may be subject to civil money penalties.  In addition, certain violations of the Privacy Rule may be subject to criminal prosecution.  These penalty provisions are explained below.

Civil Money Penalties: OCR may impose a penalty on a covered entity for a failure to comply with a requirement of the Privacy Rule.  Penalties will vary significantly depending on factors such as the date of the violation, whether the covered entity knew or should have known of the failure to comply, or whether the covered entity’s failure to comply was due to willful neglect.  Penalties may not exceed a calendar year cap for multiple violations of the same requirement.

  For violations occurring prior to 2/18/2009 For violations occurring on or after 2/18/2009

Penalty Amount

Up to $100 per violation

$100 to $50,000 or more per violation

Calendar Year Cap

$25,000

$1,500,000

A penalty will not be imposed for violations in certain circumstances, such as if:

- The failure to comply was not due to willful neglect, and was corrected during a 30-day period after the entity knew or should have known the failure to comply had occurred (unless the period is extended at the discretion of OCR); or

- The Department of Justice has imposed a criminal penalty for the failure to comply (see below).

In addition, OCR may choose to reduce a penalty if the failure to comply was due to reasonable cause and the penalty would be excessive given the nature and extent of the noncompliance.

Before OCR imposes a penalty, it will notify the covered entity and provide the covered entity with an opportunity to provide written evidence of those circumstances that would reduce or bar a penalty.  This evidence must be submitted to OCR within 30 days of receipt of the notice.  In addition, if OCR states that it intends to impose a penalty, a covered entity has the right to request an administrative hearing to appeal the proposed penalty.

Criminal Penalties: A person who knowingly obtains or discloses individually identifiable health information in violation of the Privacy Rule may face a criminal penalty of up to $50,000 and up to one-year imprisonment.  The criminal penalties increase to $100,000 and up to five years imprisonment if the wrongful conduct involves false pretenses, and to $250,000 and up to 10 years imprisonment if the wrongful conduct involves the intent to sell, transfer, or use identifiable health information for commercial advantage, personal gain or malicious harm.  The Department of Justice is responsible for criminal prosecutions under the Privacy Rule.

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