Keith Mack
The Health Insurance Portability and Accountability Act (HIPAA) establishes rules to protect patient privacy and confidentiality. While the law primarily applies to healthcare providers and their associates, anyone can violate HIPAA rules by sharing protected health information without the patient's consent. This includes family members, non-medical staff, and business associates. Patients can file a complaint with the Office for Civil Rights (OCR) or take legal action if they believe their health information privacy rights have been violated. As such, it is important for everyone, not just medical professionals, to be aware of HIPAA regulations and the potential consequences of unauthorized disclosure of protected health information.
| Characteristics | Values |
|---|---|
| Who does HIPAA apply to? | Covered entities and their business associates |
| Who is a covered entity? | Doctors, hospitals, insurance companies, billing companies, and other healthcare providers |
| What is a business associate? | An entity that provides a service to a covered entity |
| What is the consequence of a HIPAA violation? | Civil and criminal penalties, including fines, imprisonment, and corrective action plans |
| Who enforces HIPAA? | U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) |
| Can patients sue for HIPAA violations? | Patients cannot sue directly under federal law but can sue for state law violations or invasion of privacy |
| What is considered a HIPAA violation? | Unauthorized disclosure of protected health information, lack of patient access to information, and lack of safeguards |
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What You'll Learn
Who is subject to HIPAA?
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) applies to covered entities and business associates. Covered entities include individuals, organizations, and agencies that meet the definition of a covered entity under HIPAA. This includes health plans, clearinghouses, and certain healthcare providers.
Clearinghouses are organizations that process non-standard health information to conform to standard data content or format on behalf of other organizations. Providers who submit HIPAA transactions, such as claims, electronically are also covered. Examples include government programs that pay for healthcare, such as Medicare, Medicaid, and military and veterans' health programs.
Business associates are those who provide a service for a covered entity. They are required to comply with some standards of the HIPAA Privacy Rule, usually outlined in a Business Associate Agreement.
Healthcare providers and specific healthcare professionals are also subject to HIPAA. This includes doctors, who may be classified as covered entities or business associates. In the case of a solo practitioner, they are a covered entity in their own right. If a doctor is found to have violated HIPAA standards, the incident should be reported to the covered entity, who will investigate or refer it to the Department of Justice for further investigation.
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What are the penalties for violations?
Violating HIPAA can result in civil and criminal penalties. The U.S. Department of Health and Human Services' (HHS) Office for Civil Rights (OCR) is responsible for enforcing the HIPAA Privacy and Security Rules. The OCR may refer the complaint to the Department of Justice (DOJ) for investigation if a complaint describes a possible violation of the criminal provision of HIPAA.
The penalties for violating HIPAA laws can depend on multiple factors. There are four civil categories and three criminal categories for punishing violations. The secretary of HHS has discretion in determining the amount of the penalty based on the nature and extent of the violation and the harm resulting from it. There are four tiers of penalties for violating HIPAA, with maximum penalty caps of up to $1.5 million for all violations of an identical provision during a calendar year. The government determines the penalty amount on a case-by-case basis, considering the nature and extent of the violation and the resulting harm, as well as other aggravating and mitigating factors listed in the HIPAA regulations.
Civil penalties for unknowingly violating HIPAA are the same as for knowingly violating it. The penalty for unknowingly violating the HIPAA Privacy and Security Rules is $100 to $50,000 per violation, with an annual maximum of $25,000 for repeat violations. For reasonable cause, the penalty is $1,000 to $50,000 per violation, with an annual maximum of $100,000 for repeat violations. If the violation is due to willful neglect but is corrected within the required time period, the penalty is $10,000 to $50,000 per violation, with an annual maximum of $250,000 for repeat violations. The highest penalty is for willful neglect that is not corrected within the required time period, which is a fine of $50,000 per violation, with an annual maximum of $1.5 million.
Criminal penalties for HIPAA violations are also tiered. A person who knowingly obtains or discloses individually identifiable health information in violation of the Privacy Rule may face a criminal penalty of up to $50,000 and up to one year in prison. The criminal penalties increase to $100,000 and up to five years in prison if the wrongful conduct involves false pretenses. The penalties increase further to $250,000 and up to 10 years in prison if the wrongful conduct involves the intent to sell, transfer, or use identifiable health information for commercial advantage, personal gain, or malicious harm.
While patients cannot sue for HIPAA violations under federal law, they can sue healthcare providers or professionals for violating state laws involving HIPAA. Patients can sue for a "harmful" violation of their medical history or medical privacy, such as when sensitive information is sent without consent, resulting in an invasion of privacy or harm to the patient's life.
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Can patients sue for violations?
Patients cannot sue anyone directly for HIPAA violations. Under federal law, HIPAA does not have a private cause of action. However, patients can sue healthcare providers or specific healthcare professionals for violating state laws involving HIPAA. Patients can sue for a "harmful" violation of their medical history or medical privacy. These claims are typically negligence claims or breach of contract claims.
If a patient's medical information has been compromised, they can file a complaint with the federal government, and in most cases, complaints are investigated. Action may be taken against the covered entity if the complaint is substantiated and it is established that HIPAA Compliance Rules have been violated. The complaint should be filed with the Department of Health and Human Services' Office for Civil Rights (OCR). While complaints can be filed anonymously, OCR will not investigate any complaints against a covered entity unless the complainant is named and contact information is provided.
If a complaint describes an action that could be a violation of the criminal provision of HIPAA, OCR may refer the complaint to the Department of Justice (DOJ) for investigation. The OCR and state attorneys are responsible for addressing and punishing HIPAA violations on the public's behalf. State attorneys will handle all criminal suits and some civil suits. Victims may be able to sue personally in civil court in very rare situations.
If a patient's psychotherapist's office sends sensitive information to a primary physician without consent, the patient may have a cause of action in state court for invasion of privacy. The patient must submit a complaint before an attorney can file a lawsuit.
HIPAA violations can result in civil and criminal penalties. The secretary of HHS has discretion in determining the amount of the penalty based on the nature and extent of the violation and the harm resulting from it. The penalty for violating HIPAA laws can depend on multiple factors. If the doctor is a covered entity in their own right (i.e., a solo practitioner), if HHS’ Office for Civil Rights investigates and identifies a compliance issue, it will usually attempt to resolve the issue with voluntary compliance or technical assistance. If the violation is serious or the doctor has a history of non-compliance, the agency may impose a corrective action plan or civil monetary penalty.
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What are common HIPAA violations?
Yes, non-medical professionals can violate HIPAA law. HIPAA violations can result in an invasion of privacy or harm to the patient's life. A patient can sue healthcare providers or specific healthcare professionals for violating state laws involving HIPAA.
Some of the most common HIPAA violations include:
- Failure to use encryption: Encryption programs and HIPAA-compliant communication platforms should be used to maintain the security and integrity of sensitive data.
- Inadequate ePHI access control: This includes failing to restrict access to medical records.
- Inadequacies in employee training: All employees should receive training on HIPAA compliance, with documented evidence to prove it.
- Loss or theft of portable devices (with PHI access): This includes losing a device with access to PHI or failing to protect patient data from unauthorized access by family members or others.
- Improper disposal of PHI: This includes posting patient photos on social media, even without accompanying names or information.
- Non-compliant business associate agreements: Business associates must be bound by HIPAA-compliant agreements.
- Unauthorized access to PHI: This is one of the most common HIPAA violations committed by employees, including accessing the medical records of friends, family, neighbours, co-workers, or celebrities.
- Failure to carry out organization-wide risk analysis: This is one of the most common HIPAA violations to result in a financial penalty.
- Lack of a risk management plan: Risks that are identified must be subjected to a risk management process, prioritized, and addressed in a reasonable time frame.
Penalties for HIPAA violations depend on factors such as the gravity of the breach, how long the violation persisted, and the organization's finances. They are usually imposed on a penalty per violation basis and can include civil and criminal penalties.
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How are violations enforced?
The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) is responsible for enforcing HIPAA Privacy and Security Rules. The OCR reviews the information it gathers and determines whether a covered entity has violated the Privacy and Security Rules. If the OCR determines that a covered entity has not violated the rules, it closes the case. However, if it finds noncompliance, the OCR will attempt to resolve the case with the covered entity by obtaining voluntary compliance or technical assistance. If the violation is serious or the covered entity has a history of non-compliance, the OCR may impose a corrective action plan or civil monetary penalties (CMPs). The CMPs for HIPAA violations follow a tiered civil penalty structure, with the penalty amount based on the nature and extent of the violation and the harm resulting from it.
In cases of criminal violations of HIPAA, the OCR may refer the complaint to the Department of Justice (DOJ) for investigation. The DOJ interprets the "'knowingly' element of the HIPAA statute for criminal liability" as requiring only knowledge of the actions that constitute an offense, not specific knowledge that the action violates HIPAA. Criminal violations of HIPAA can result in fines and imprisonment, with penalties increasing for offenses committed under false pretenses or with the intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm.
In addition to financial penalties and criminal liability, other consequences of HIPAA violations can include termination of employment, reports to licensing authorities, and involvement of law enforcement. To prevent HIPAA violations, covered entities should implement training programs, ensure access privileges comply with the Minimum Necessary Standard, activate audit logs, and enforce sanctions.
While patients cannot sue directly for HIPAA violations under federal law, they may have a cause of action in state court for invasion of privacy or harm to their medical history or medical privacy. Patients must submit a complaint before an attorney can file a lawsuit.
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Frequently asked questions
Yes, any individual or entity that knowingly obtains or discloses identifiable health information in ways not permitted by HIPAA may face a fine of up to $50,000 or imprisonment for up to a year.
A violation of HIPAA law includes the impermissible use and disclosure of protected health information, lack of safeguards of protected health information, lack of patient access to their protected health information, and lack of administrative safeguards of electronic protected health information.
If you believe your HIPAA rights have been violated, you can file a complaint with the Office for Civil Rights (OCR) within the US Department of Health and Human Services (HHS). The OCR will then investigate the complaint and take appropriate action.
The consequences of violating HIPAA law can vary depending on the nature and extent of the violation, as well as the compliance history of the individual or organization involved. Penalties can range from verbal and written warnings to civil and criminal penalties, including fines and imprisonment.
Patients cannot sue for a HIPAA violation as it does not have a private cause of action under federal law. However, patients can sue for a "harmful" violation of their medical history or medical privacy through negligence or breach of contract claims.
