The Cloud is Good, But Know Where Data Go

network-197300_1280A recent settlement announcement from the U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) highlights the need to evaluate web-based applications and storage solutions.  Web-based or cloud solutions are viable options and tools for healthcare entities to utilize, but those tools need to evaluated for compliance with HIPAA security requirements.

Saint Elizabeth’s Medical Center (“SEMC”), located outside of Boston, MA, learned this lesson the hard way.  On November 16, 2012, certain workforce members at SEMC reported suspected non-compliance with HIPAA to OCR.  The report focused upon use of an internet-based document sharing and storage application.  The specific site is not identified in the OCR Resolution Agreement, but Dropbox is an example of an online storage site that does not meet HIPAA security requirements.  OCR notified SEMC of the results of its investigation on February 14, 2013.  Fast forward a year and SEMC then reported a breach regarding a workforce member’s unsecured laptop and USB storage device.  The combination of events led OCR to conclude that SEMC failed to implement sufficient security measures required by HIPAA and SEMC did not timely identify or mitigate harmful effects from identified deficiencies.

As a result of the two reported incidents, SEMC is now paying $218,400 to OCR in settlement funds.  The settlement continues to trend of not being able to accurately guess the amount of a fine that will be levied.  As stated in the announcement, OCR “takes into consideration the circumstances of the complaint and breach, the size of the entity, and the type of PHI disclosed.”  This statement potentially gives some insight, which can be interpreted to mean that entities with bigger pockets will be hit with larger fines because such entities can absorb larger fines.

The other consideration raised by the SEMC settlement is what to do about cloud based storage and sharing solutions.  Should all such tools be locked away from use healthcare organizations?  This is not necessarily the answer because some tools do follow HIPAA security requirements.  For example, some cloud storage services were built specifically for healthcare, and as such are more cognizant of applicable regulatory requirements.  More general sites, such as Box, noted HIPAA requirements and claim to meet required standards.  As such, it is possible for organizations to utilize cloud based options.

However, it is not necessarily the choices of an organization as a whole that are troublesome.  In SEMC’s case, it is not clear whether the workforce members acted under SEMC’s direction or utilized the cloud sites without SEMC’s direct knowledge.  The unsupervised actions of workforce members are what can cause an organization a lot of concern.  Organization’s need to train and educate workforce members, but cannot always control their actions.  Despite the inability to constantly track what a workforce member is doing, certain steps could be taken to alleviate concerns.  One measure would be to block access to websites that could lead to a potential breach or other non-compliance.  Such a measure may not make all workforce members happy, but an organization should assess its risks and take appropriate measures.  Additionally, an organization can suggest sites that are compliant be used.

Regardless of the approach taken, organizations need to be cognizant of the risks posed by cloud based storage, especially on the individual level.  OCR’s settlement with SEMC is only the most recent action to highlight the concern.  As has been stated before, once OCR releases a settlement addressing an issue, subsequent organizations with the same issue can expect greater focus on the identified issue and less leniency when it comes to a violation.

About Matt Fisher

Matt is the chair of Mirick O'Connell's Health Law Group and a partner in the firm's Business Group. Matt focuses his practice on health law and all areas of corporate transactions. Matt's health law practice includes advising clients with regulatory, fraud, abuse, and compliance issues. With regard to regulatory matters, Matt advises clients to ensure that contracts, agreements and other business arrangements meet both federal and state statutory and regulatory requirements. Matt's regulatory advice focuses on complying with requirements of the Stark Law, Anti-Kickback Statute, fraud and abuse regulations, licensing requirements and HIPAA. Matt also advises clients on compliance policies to develop appropriate monitoring and oversight of operations.
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