Last year, the Health Sector Cybersecurity Coordination Center (HC3) under the Department of Health and Human Services (HHS) issued a threat brief outlining various social engineering tactics employed by hackers to infiltrate healthcare information systems. The brief recommended multiple protective measures to counter social engineering, one of which emphasized holding every department accountable for security. An organization’s sanction policies foster accountability and enhance cybersecurity and data protection. Sanction policies serve as valuable tools in addressing the deliberate actions of malicious insiders, such as data theft by identity theft rings, and addressing instances where workforce members fail to adhere to policies and procedures. This could include lapses like failing to secure data on a network server or neglecting to investigate a potential security incident.
The HIPAA Privacy, Security, and Breach Notification Rules (HIPAA Rules) mandate covered entities and business associates (regulated entities) to ensure compliance with the rules by their workforce members. Regulated entities are responsible for safeguarding the privacy and security of protected health information (PHI) through training programs, adopting written policies and procedures, and implementing sanctions against workforce members violating these policies.
Both the Privacy Rule and the Security Rule specifically necessitate the establishment of sanction policies. The Privacy Rule requires covered entities to enforce appropriate sanctions against workforce members who fail to comply with privacy policies, procedures, or the requirements outlined in the Privacy Rule or the Breach Notification Rule. Similarly, the Security Rule mandates covered entities and business associates to apply suitable sanctions against workforce members who do not adhere to the security policies and procedures of the respective entity.
The Functions of a Sanction Policy
Sanction policies are crucial in enhancing a regulated entity’s adherence to the HIPAA Rules. Enforcing repercussions for workforce members who breach these policies or the HIPAA Rules effectively cultivates a culture of compliance and bolsters cybersecurity. The awareness of potential negative consequences for noncompliance significantly increases the likelihood of adherence. Educating workforce members about the regulated entity’s sanction policy further contributes to compliance and heightened cybersecurity awareness by clearly outlining prohibited actions and their associated punishments. A well-communicated sanction policy ensures that each workforce member comprehends their compliance responsibilities and the repercussions of noncompliance.
Content: What Should a Sanction Policy Look Like?
Because entities regulated by HIPAA vary significantly in terms of their technology, size, resources, and risk levels, the HIPAA Rules allow for a flexible approach to achieving compliance. This flexibility also applies to sanction policies. The Privacy Rule preamble emphasizes that the details of sanction policies are at the discretion of the covered entity, which is expected to be familiar with the circumstances of the violation. Similarly, the Security Rule preamble states that regulated entities can implement standards consistent with size, risk level, and environment.
HIPAA Rules don’t mandate specific penalties for individual violations or require adopting particular sanction methodologies. Instead, each covered entity or business associate must determine the type and severity of sanctions on a case-by-case basis, guided by its security policy and the relative seriousness of the violation. Regulated entities can structure their sanction policies to best suit their organization. When drafting or revising sanction policies, entities may want to consider the following factors:
- Establishing or executing sanction policies by a formalized procedure.
- Mandating team members to actively acknowledge that breaching the organization’s HIPAA policies could lead to sanctions.
- Recording the sanction process, detailing the personnel involved, procedural steps, time frames, reasons for sanctions, and the ultimate outcome of an investigation. Note: Maintain these records for a minimum of six years.
- Developing sanctions that align with the nature of the violation.
- Tailoring sanctions based on factors such as the severity of the violation, intent, and whether it indicates a pattern of improper use or disclosure of protected health information.
- Implementing a range of sanctions, from warnings to termination, based on the nature and severity of the violation.
- Offering examples of potential policy and procedure violations.
Considering these factors, entities under regulation can create a thorough and well-documented sanction policy. This policy would communicate the regulated entity’s expectations to its workforce and discourage misconduct. Moreover, it would enhance HIPAA compliance by fostering greater understanding and transparency regarding the policies and procedures safeguarding the privacy and security of PHI.
Execution: Sanctioning Consistently
How a regulated entity enforces its sanction policy is just as crucial as the policy’s actual content. The entity needs to assess if its sanction policies align with general disciplinary guidelines and how individuals or departments involved in the sanction processes can collaborate effectively when necessary. Additionally, regulated entities should contemplate applying sanction policies consistently and fairly across the organization, encompassing all workforce members, including management. Inconsistently using sanctions on workforce members can compromise the integrity of the entity’s compliance program.
In 2017 and 2018, OCR concluded two investigations involving regulated entities that potentially violated HIPAA Rules sanction requirements. In the first case, OCR discovered evidence indicating that the regulated entity may have “impermissibly disclosed the patient’s PHI through press releases issued to fifteen media outlets and reporters,” and senior leaders disclosed the patient’s PHI to advocacy groups and in a published statement on their website. OCR also found evidence suggesting that the regulated entity potentially “failed to document timely the sanctions imposed against members of its workforce who failed to comply with its privacy policies and procedures or the Privacy Rule.” In the second case, OCR identified evidence of a potential violation of sanction requirements when a workforce member allegedly disclosed PHI to a reporter, and the regulated entity allegedly neglected to apply appropriate sanctions against the workforce member who failed to comply with the entity’s privacy policies and procedures and the Privacy Rule.”
Conclusion
Sanction policies present a valuable opportunity for regulated entities to establish and convey compliance obligations and expectations to their workforce. By imposing penalties for noncompliance and misconduct and effectively communicating the repercussions, these policies can enhance adherence to HIPAA Rules. In the current landscape, marked by elevated risks such as hacking and other threats to the privacy of electronic health information (ePHI), regulated entities must ensure that their policies and practices incorporate sanctions, holding all workforce members responsible for compliance with HIPAA Rules.
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