HITECH Act Amendment: Using “Recognized Security Practices” May Lead to More Favorable HHS Review and Reduced Fines After Data Breach

by Margaret Young Levi and Kathie McDonald-McClure

Congress amended the Health Information Technology for Economic and Clinical Health Act (HITECH Act) on January 5, 2021.  This Amendment requires the U.S. Department of Health and Human Services (HHS) to favorably consider whether covered entities and business associates have implemented specific security measures when making decisions regarding penalties and audits under the Health Insurance Portability and Accountability Act (HIPAA). 

Specifically, the Amendment mandates HHS to “consider whether the covered entity or business associate has adequately demonstrated that it had, for not less than the previous 12 months, recognized security practices in place” when HHS is making decisions to (1) decrease fines, (2) decrease the length and extent of an audit or terminate an audit, and (3) mitigate other remedies with respect to resolving potential violations of the HIPAA Security Rule. 

The HIPAA Security Rule already requires covered entities and business associates to implement appropriate administrative, physical and technical safeguards to ensure the confidentiality, integrity, and security of electronic protected health information (ePHI) but it does not specify those safeguards. This Amendment recognizes certain safeguards and provides benefits to covered entities and business associates who implemented them.  The Amendment defines “recognized security practices” to mean:

  • the standards, guidelines, best practices, methodologies, procedures, and processes developed under section 2(c)(15) of the National Institute of Standards and Technology Act,
  • the approaches promulgated under section 405(d) of the Cybersecurity Act of 2015, and
  • other programs and processes that address cybersecurity and that are developed, recognized, or promulgated through regulations under other statutory authorities.

Such practices shall be determined by the covered entity or business associate, consistent with the HIPAA Security Rule. 

The Amendment does not permit HHS to fine a covered entity or business associate, nor to increase fines, merely due to choosing not to engage in “recognized security practices”. Likewise, the Amendment does not prevent HHS from imposing fines if the administrative, physical and technical safeguards implemented by the covered entity or business associate were lacking or not appropriate, or if there was a data breach due to a lack of appropriate safeguards.  On the other hand, a covered entity or business associate who has experienced a data breach resulting from a cyber attack could benefit from reduced fines if these recognized security measures were in place.

The Amendment is to be effective retoactively to December 13, 2016, the effective date of The 21st Century Cures Act.   

Federal Agencies Warn of Cyberattacks on U.S. Hospitals

By Margaret Young Levi and Kathie McDonald-McClure

On October 28, 2020,  the Federal Bureau of Investigation (FBI), the U.S. Department of Health and Human Services (HHS), and the Cybersecurity and Infrastructure Security Agency (CISA) issued a Joint Cybersecurity Advisory warning hospitals and the health care community about coordinated ransomware attacks on hospitals designed to steal data and freeze hospital information systems for financial gain. 

Six U.S. hospitals fell victim to this attack on October 27th and the FBI, HHS, and CISA have credible information that more hospitals will be targeted in this attack. The ransomware behind these attacks is known as Ryuk, which utilizes TrickBot malware and other malware to execute the attack. The Ryuk ransomware is designed to allow the cybercriminals to stealthily access, map and move laterally across the victim’s network before encrypting critical data files and deleting connected backups.

Network Best Practices. The Joint Cybersecurity Advisory provides some practical precautions that health care providers can put in place to protect their networks from these threats:

  • Patch operating systems, software, and firmware as soon as manufacturers release updates.
  • Check configurations for every operating system version to prevent issues from arising that local users are unable to fix due to having local administration disabled.
  • Regularly change passwords to network systems and accounts.
  • Do not reuse the same password for different accounts.
  • Use multi-factor authentication where possible.
  • Disable unused remote access/Remote Desktop Protocol (RDP) ports and monitor remote access/RDP logs.
  • Ensure that your remote access and application “block lists” and “allow lists” are up-to-date so that only those programs and individuals with permission can access your system.
  • Audit user accounts with administrative privileges and configure access controls with minimum necessary privileges in mind.
  • Audit logs to ensure new accounts are legitimate.
  • Scan for open or listening ports and address ports that are not needed. (Ports are your network’s gateways for internet data exchange. There are 65,535 TCP ports and 65,535 UDP ports. Cybercriminals scan these ports to find access into your network and you should too!)
  • Identify the critical data assets on your network and ensure that backups of these assets are not connected to the network 24-7 and the most recent backup is housed offline from the network.
  • Implement network segmentation to secure sensitive data.  For example, sensitive data files should not reside on the same server as email.
  • Set antivirus and anti-malware solutions to automatically update; conduct regular scans.

End User Awareness and Training. As pointed out in the Joint Cybersecurity Advisory, a best practice includes focusing on user awareness and training. Because end users are the most common targets, ensure employees and stakeholders are aware of ransomware and phishing scams and how they are delivered. To ensure that you can timely mitigate the risk and deploy your data security incident response plan, ensure employees and stakeholders know who to contact if they see suspicious activity or believe they are a victum of an attack.

Addressing the Ransom Demand. The Joint Cybersecurity Advisory also includes information on what to immediately do when a ransomware attack is discovered.  In particular, it advises not paying ransoms.  For more information about this read our article on the Wyatt HITECH Law blog discussing two new Treasury Department advisories issued on October 1, 2020 about the risks of paying ransoms and the potential for sanctions when doing so.

The Wyatt Data Incident Response Team has prepared “Six Tips” on responding to a cybersecurity incident within the first 24-48 hours. For more information on Wyatt’s Data Privacy & Security Incident Response Team see our Data Privacy & Incident Response Team brochure and visit the Data Incident Response Team tab on this blog.

U.S. Department of Homeland Security Issues SAP Critical Vulnerability Alert

Written by:  Kathie McDonald-McClure

On Monday, July 13, 2020, the Homeland Security Cybersecurity and Infrastructure Security Agency (CISA) issued a SAP cybersecurity alert, No. AA20-195A, regarding a critical vulnerability that an unauthenticated attacker could exploit through the Hypertext Transfer Protocol (HTTP) to take control of trusted SAP applications. CISA strongly recommends that organizations immediately apply patches, prioritizing internet-facing systems and then internal systems.  At least 15 SAP Java-based solutions are affected, including the SAP Supply Chain Management, the SAP Enterprise Portal, Central Process Scheduling and other widely used SAP applications.  See the Alert for the list of 15 affected SAP applications.

CISA/NCSC Joint Alert Warns of APT Groups Targeting Healthcare and Essential Services

by Margaret Young Levi and Kathie McDonald-McClure

On May 5, 2020, the U.S. Department of Homeland Security (DHS) Cybersecurity and Infrastructure Security Agency (CISA) and the United Kingdom’s National Cyber Security Centre (NCSC) issued a joint alert warning of techniques that advanced persistent threat (APT) groups are using to exploit the COVID-19 pandemic.

APT groups target and exploit organizations responding to COVID-19, such as healthcare organizations, pharmaceutical companies, universities, medical research organizations, and local governments. These groups seek to steal “bulk personal information, intellectual property, and intelligence that aligns with national priorities.” For example, pharmaceutical companies, medical research organizations, and universities have been targeted in order to steal sensitive research into COVID-19-related medicine for both commercial and governmental benefit.

These cybercriminals employ a variety of techniques to steal data.

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Data Security in the “New Normal” of Teleworking

By Margaret Young Levi and Kathie McDonald-McClure

The 2020 worldwide pandemic will go down in the history books much like the 1918 Spanish Flu.  One big difference between then and now: the technology that has enabled millions of us to remain moderately productive “at work” from the comfort of our homes.  Welcome to the “new normal” of telework.  Being comfy at work in yoga pants – saving time by not having to dress for “the office” as we once knew it.  Shorter commutes, with coffee refills only steps away in the “breakroom” – our kitchens.  Staying connected to our co-workers, clients and work associates in Brady Bunch style, creating a little mystique with virtual backgrounds on Zoom, Microsoft Teams or WebEx video conferencing platforms.

As relaxed as we may be in the new normal of teleworking, it’s not a time to relax when it comes to being vigilant in securing the confidences of our employers, employees, clients or customers.  Teleworking brings new technology challenges:  learning new software and conferencing programs, managing confidential paper documents, and protecting electronic data.  And since our homes are now an extension of our offices, these challenges may create additional exposure for employers. As office workers and healthcare providers switched to telework and telehealth under state stay-at-home orders, malicious cyber actors were ramping up to take advantage of the security gaps that would inevitably accompany such a sudden transition. Wyatt data privacy counsel offer practical tips to protect employer and client data, as well as personal information, in the new normal of telework.

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