News of the settlement came in a statement from the Massachusetts Attorney General's office dated May 24th. According to the consent judgment approved in the Suffolk Superior Court, South Shore Hospital will pay a $250,000 civil penalty and $225,000 toward an education fund that will be used by the Attorney General's Office to promote education concerning the protection of personal information and protected health information. The consent judgment credits South Shore Hospital for the additional $275,000 the hospital spent to beef up its security measures in the aftermath of the data breach.
According to Massachusetts attorney general Martha Coakley, hospitals and other entities that handle personal and protected health information are obligated to properly protect sensitive data, whether it is in paper or electronic form.
"It is their responsibility to understand and comply with the laws of our Commonwealth and to take the necessary actions to ensure that all affected consumers are aware of a data breach," Coakley said.
[ ONC guidelines recommend that medical practices establish a privacy and security officer to help safeguard patient data. Read more at ONC To Medical Practices: Get A Security Officer. ]
The data breach was reported to the Attorney General's Office in July 2010, and a subsequent investigation found that in February 2010, South Shore Hospital shipped three boxes containing 473 unencrypted backup computer tapes with 800,000 individuals' personal information and protected health information off-site to be erased. The hospital contracted with Phoenixville, Pa.-based Archive Data Solutions to erase the backup tapes and resell them.
However, the hospital did not inform Archive Data that the backup computer tapes contained personal information and protected health information; nor did South Shore Hospital determine whether Archive Data had sufficient safeguards in place to protect this sensitive information. Further complicating matters, the investigation showed that multiple companies handled the shipping of the boxes containing the tapes.
In June 2010, South Shore Hospital learned that only one of the boxes arrived at its destination in Texas. The other missing boxes have not been recovered, although there have been no reports of unauthorized use of the personal information or protected health information of affected individuals to date.
In an interview, Daniel Berger, president and CEO of Redspin Inc., a company that provides IT risk assessments at hospitals and other medical facilities, said the investigation's findings reveal many points of internal breakdown in South Shore Hospital's policies and procedures to protect patients' ePHI. According to Berger, this could have been preempted had a comprehensive security risk analysis been conducted prior to the incident.
He also said the findings of the Massachusetts Attorney General's investigation raises serious questions, including why the data was unencypted. According to Berger, encrypting patient data is an addressable requirement under HIPAA, and if the hospital chose not to encrypt, they were required to implement comparable means of protecting the data.
The investigation also raised other troubling questions. "Why didn't South Shore sign a Business Associate agreement with Archive Data?" Berger said. "Additionally, the hospital should have known that its custodial responsibility in regard to safeguarding protected health information (PHI) pertains to all copies of the data, whether in use at the hospital or at a business partner, and extends through the 'life cycle' of that data--all the way through to disposal."
The allegations in the lawsuit against South Shore Hospital were based on violations of the Massachusetts Consumer Protection Act and the federal Health Insurance Portability and Accountability Act (HIPAA). Among the violations are failing to implement appropriate safeguards, policies, and procedures to protect consumers' information; failing to have a Business Associate Agreement in place with Archive Data Solutions; and failing to properly train workforce with respect to health data privacy.
To better protect patient information, South Shore Hospital has agreed to adopt a number of measures to ensure compliance with state and federal data security laws and regulations, including requirements regarding its contracts with business associates and third-party service providers engaged for data destruction purposes. The hospital also agreed to undergo a review and audit of certain security measures and to report the results and any corrective actions to the attorney general.
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