Many health care providers, including small and medium-sized physician practices, rely on a number of third party service providers to serve their patients and run their businesses. Perhaps the most important of these is a practice’s electronic medical record (EMR) provider, which manages and stores patient protected health information. EMR providers generally are business associates under HIPAA, subjecting them to many of the same requirements under the HIPAA privacy and security rules applicable to covered healthcare providers. HIPAA-covered healthcare providers should not assume their EMR providers comply with HIPAA and HITECH.

According to a federal Office for Civil Rights (OCR) press release, Medical Informatics Engineering, Inc. (MIE) has paid $100,000 to OCR and has agreed to a detailed corrective action plan to settle potential violations of the HIPAA privacy and security rules. MIE provides software and EMR services to healthcare providers.

According to reporting by the Chicago Tribune,

about 82 percent of hospital information security leaders surveyed reported having a “significant security incident” in the last 12 months, according to the 2019 Healthcare Information and Management Systems Society Cybersecurity Survey.

Yet, according to the same report, spending on information security only takes up about 5% of healthcare providers’ data security budgets, which is well below industry average. Additionally, some have estimated that in 2018, 20% of the breaches suffered by healthcare providers was caused by their third-party service providers. An excellent article by HIPAAJournal outlines a number of statistics illustrating the growing data security risk in healthcare.

In 2015, MIE reported to OCR that it discovered a breach which compromised user IDs and passwords enabling access to electronic protected health information (ePHI) of approximately 3.5 million people. OCR claims that, according to OCR’s investigation, MIE did not conduct a comprehensive risk analysis prior to the breach. The HIPAA rules require entities to perform an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of an entity’s ePHI. This is a basic requirement in the HIPAA security rules that all covered entities and business associates need to perform.

OCR Director Roger Severino noted,

The failure to identify potential risks and vulnerabilities to ePHI opens the door to breaches and violates HIPAA.

So, what is a healthcare provider to do?

A required element of HIPAA compliance includes having business associate agreements in place with business associates, including EMR providers. Under these agreements, business associate agree that they have satisfied the risk assessment requirement under HIPAA. However, in addition to making sure that compliant agreements are in place, covered healthcare providers may want to go a step further. That is, they may want to better assess the compliance efforts of their vendors as represented in the business associate agreement, particularly for those vendors that process and maintain so much of their patients’ ePHI. Providers might, for example, require such vendors to complete a detailed questionnaire about their data security practices, visit the vendor’s facilities, and/or request to review a copy of the vendor’s risk assessment. Similar practices can be applied to all vendors, not just EMR providers or business associates, based on the risk they pose.

Of course, healthcare providers should make sure they themselves are in compliance with the HIPAA privacy and security rules. This includes, among other things, conducting and documenting their own risk assessment. Simply having a set of policies and procedures is not sufficient.