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OCR Launches 2016 Phase 2 HIPAA Audit Program

On March 21, OCR announced that it has officially launched its long-anticipated 2016 Phase 2 HIPAA Audit Program (rumors and unofficial reports of progress on this program have been circulating in recent months). This announcement follows a series of actions demonstrating OCR’s escalated focus on HIPAA enforcement in the wake of two recent OIG reports criticizing OCR’s enforcement efforts.

Phase 2 Audit Program

Phase 2 will begin with data gathering exercises, followed by targeted “desk audits” (i.e., reviews of organizations’ privacy and security compliance policies and procedures) in 2016 and more comprehensive on-site audits starting in 2017. First, OCR will gather data about the size, type, and operations of potential auditees through the use of a pre-audit questionnaire. OCR plans to use the data to create potential audit subject pools (particularly for its plan to audit business associates).

Once the data collection phase is complete, OCR will implement desk audits. These audits will be targeted, focusing on particular Privacy, Security, or Breach Notification Rules. The 2016 desk audits will include covered entities and business associates. 

Finally, according to the OCR’s Q&A on the new audit program, on-site audits will be more comprehensive and are scheduled to begin in 2017, after the desk audits are completed (desk auditees may or may not become on-site auditees). Audit results will not be publicized by OCR, but any resulting compliance investigation could become public. Notifications regarding audits are to be distributed by email – so check your inbox!

Recent OCR Enforcement Action

OCR’s Phase 2 announcement comes in the wake of substantial resolution agreements related to OCR’s compliance investigations. First, on March 16, 2016, OCR announced a $1.5 million resolution agreement with North Memorial Health Care of Minnesota for failing to execute business associate agreements, among other alleged HIPAA violations. Then, just one day later, OCR announced that it reached a $3.9 million settlement with the Feinstein Institute for Medical Research (“Feinstein”), a New York not-for-profit biomedical research institute, over alleged HIPAA violations.  The resolution agreement reached with Feinstein is particularly illustrative of the fact that OCR has ratcheted up its enforcement efforts.

The investigation into Feinstein’s HIPAA compliance policies and procedures began after Feinstein reported that a laptop containing the electronic protected health information (ePHI) of approximately 13,000 patients and research participants was stolen from the back seat of an employee’s vehicle. OCR concluded that Feinstein violated the HIPAA Privacy and Security Rules when it: (1) failed to conduct an accurate and thorough risk assessment; (2) failed to implement policies and procedures for granting access to ePHI by its workforce members; (3) failed to implement physical safeguards for laptops; (4) failed to implement policies and procedures that govern receipt and removal of ePHI into and out of a facility; and (5) failed to implement a mechanism to encrypt ePHI or, alternatively, document why encryption was not reasonable and appropriate and implement an equivalent alternative.

Pursuant to the settlement, Feinstein must implement a corrective action plan including, for example, working with HHS to conduct a risk assessment and risk management plan, reviewing and revising its current privacy and security rules policies and procedures annually to ensure compliance with HIPAA, and training and monitoring its employees to ensure compliance with the revised policies and procedures.

Phase 2 and the Feinstein resolution agreement exemplify OCR’s increased appetite for HIPAA enforcement activity in 2016. Thus, OCR’s efforts serve as a reminder of the importance of maintaining a culture of compliance and having the architecture in place to efficiently respond to more proactive and searching enforcement activity.

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About this Author

Stephan A. Serfass, Insurance attorney, Drinker Biddle
Partner

Stephen A. Serfass concentrates his practice on financial services issues, principally related to long term care insurance, life insurance, environmental insurance and debt collection matters. He also has significant experience resolving privacy and security compliance and breach issues related to personally identifiable health and financial information. He is nationally recognized as a leader in the long term care insurance community and leads Drinker Biddle’s 20 lawyer long term care insurance team. In that arena, Steve’s work spans the product life...

215-988-3313
Nolan Tully, Insurance lawyer,Drinker Biddle
Partner

Nolan B. Tully advises clients in the insurance and financial services industries in litigation, regulatory and compliance matters. He represents insurers with respect to regulatory compliance issues, policy, insurance benefits, policy lapses, bad faith and fraud. In litigation, Nolan has represented clients on issues relating to policy lapses, the secondary market for life insurance, premium financing, fraud, and stranger-originated life insurance (STOLI).

Nolan is the co-leader of Drinker Biddle’s long term care insurance practice. He has assisted carriers in resolving issues relating to suitability, premium rate increases, developing antifraud programs, HIPAA, regulatory compliance and coverage issues. Nolan has also assisted clients with audits of various processes and procedures, including claims handling and HIPAA compliance.

215-988-2975
Christopher Petillo, Drinker Biddle, Litigation lawyer
Associate

Christopher F. Petillo assists clients with issues facing insurers in litigation concerning high-face value life insurance, privacy issues facing long-term care insurers, general liability coverage, and cyber liability. Chris assists life carriers in litigation concerning broker misconduct involving sophisticated tax avoidance and rebating schemes, fraud and misrepresentation, lapse, civil RICO, and secondary market issues such as stranger-originated life insurance and non-recourse premium financing. Chris also has experience representing annuity owners...

(215) 988-3355
Steven H. Brogan, Drinker Biddle, Insurance Compliance Lawyer, Claims Administration
Associate

Steven H. Brogan represents insurers in litigation, regulatory compliance, claims administration, and coverage matters, with particular focus on life and long-term care insurance matters. Steve also assists life insurance and annuity companies on issues relating to stranger-originated life insurance transactions (STOLI) and the secondary market for life insurance.

Steve’s practice also focuses on information privacy and security issues, including in connection with Gramm-Leach-Bliley Act, HIPAA, HITECH, state security breach...

(215) 988-3380