By Linda H. Mullany, Esq. of Gordon Rees Scully Mansukhani, LLP
On July 11, 2016, the Office for Civil Rights (“OCR”) published guidelines for ransomware attack prevention and recovery, including the role HIPAA has in assisting covered entities and business associates prevent and recover from such attacks, and how HIPAA breach notification processes should be managed in response to a ransomware attack. According to the OCR report, there have been 4,000 daily ransomware attacks since early 2016, up 300% from 2015. Earlier this week a healthcare IT Security Consultant told me the chatter he hears is the hackers are working on stronger, more aggressive, more deadly hacks to unleash, and he fears a hacking storm a brewin’. Time to get serious and batten down the hatches, folks!
The OCR report describes what a ransomware attack is, and explains that maintaining strict HIPAA Security Rule compliance can help prevent the introduction of malware, including ransomware. Some of the required security measures discussed include:
- Implementing a security management process, which includes conducting a risk analysis and taking steps to mitigate or remediate identified threats and vulnerabilities;
- Implementing processes to guard against and detect malicious software;
- Training users on malicious software protection; and
- Implementing access controls.
Ransomware gets into your system, denies you access to your data (usually through encryption), and then directs you to pay a ransom to the hacker in order to receive a decryption key. For this reason, maintaining frequent backups and ensuring the ability to recover data from backups is crucial to surviving a ransomware attack. HIPAA compliance helps protect entities because the Security Rule requires covered entities and business associates to implement a data backup plan as part of an overall contingency plan, which includes periodic testing of the plan to be sure it works.
The presence of ransomware – or any malware – is considered a security incident and triggers the need to initiate security incident response and reporting procedures. Based upon an analysis of the investigation results, breach notification may be required. Additionally, if there is an impermissible disclosure of protected health information (“PHI”) in violation of the privacy rule, there is a presumed breach which may trigger notification. Whether or not the presence of ransomware would be a breach under HIPAA Rules is thus fact specific. However, unless the entity demonstrates there is a “…low probability that the PHI has been compromised,” a breach of PHI is presumed to have occurred and the entity must comply with the applicable breach notification provisions.
Further information and a copy of the OCR report can be found here.
For additional information, please contact Linda at firstname.lastname@example.org or (619) 696-6700