HHS Office for Civil Rights Settles Ransomware Cybersecurity Investigation for $500,000

The U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR), announced a settlement with Plastic Surgery Associates of South Dakota in Sioux Falls, for several potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Security Rule, following its investigation into a ransomware attack breach by OCR. Ransomware and hacking are the primary cyber-threats in health care.

Ransomware is a type of malware (malicious software) designed to deny access to a user’s data, usually by encrypting the data with a key known only to the hacker who deployed the malware, until a ransom is paid.  There has been a 264% increase in large breaches reported to OCR involving ransomware attacks since 2018. October is Cybersecurity Awareness Month, and OCR has been working with health plans, health care clearinghouses, most health care providers and their business associates to raise awareness of the types of cyberattacks occurring and how to improve data security.

“Ransomware attacks often reveal a provider’s underlying failures to comply with the HIPAA Security Rule requirements such as conducting a risk analysis or managing identified risks and vulnerabilities to health information,” said OCR Director Melanie Fontes Rainer. “Such failures can make our doctors and hospitals attractive targets for cyberattacks and can lead to break downs in our health care system.”

OCR enforces the HIPAA Privacy, Security, and Breach Notification Rules, which set forth the requirements that covered entities (health plans, health care clearinghouses, and most health care providers), and business associates must follow to protect the privacy and security of protected health information. The HIPAA Security Rule establishes national standards to protect individuals’ electronic protected health information (ePHI) that is created, received, used, or maintained by a covered entity. It also requires appropriate administrative, physical, and technical safeguards to ensure the confidentiality, integrity, and security of ePHI. The settlement resolves OCR’s investigation concerning Plastic Surgery Associates of South Dakota and this ransomware attack.

OCR initiated an investigation following the receipt of a breach report filed by Plastic Surgery Associates of South Dakota in July 2017, which reported that it discovered that nine workstations and two servers were infected with ransomware, affecting the protected health information of 10,229 individuals. The credentials the hacker(s) used to access Plastic Surgery Associates of South Dakota’s network were obtained through a brute force attack (hacking method that uses trial and error to guess passwords, login information, encryption keys, etc.) to their remote desktop protocol. After discovering the breach, Plastic Surgery Associates of South Dakota was unable to restore the affected servers from backup.

OCR’s investigation revealed multiple potential violations of the HIPAA Security Rule, including failures to conduct a compliant risk analysis to determine the potential risks and vulnerabilities to ePHI in its systems; implement security measures sufficient to reduce the risks and vulnerabilities to ePHI to a reasonable and appropriate level; implement procedures to regularly review records of information system activity; and implement policies and procedures to address security incidents.

Under the terms of the settlement, Plastic Surgery Associates of South Dakota paid $500,000 to OCR and agreed to implement a corrective action plan that requires them to take steps to resolve potential violations of the HIPAA Security Rule and protect the security of electronic protected health information, including:

• Conduct an accurate and thorough risk analysis to determine the potential risks and vulnerabilities to the confidentiality, integrity, and availability of its ePHI;
• Implement a written risk management plan to address and mitigate security risks and vulnerabilities identified in the Risk Analysis;
• Implement policies and procedures to address security incidents, including a process for: identifying and responding to known security incidents; mitigating, to the extent practicable, harmful effects of known security incidents; and documenting (in writing) security incidents and their outcomes;
• Implement policies and procedures to establish methods to create and maintain retrievable exact copies of ePHI, including a process to: test the recoverability of backups on a regular basis to ensure that a retrievable exact copy will be available; create and maintain multiple copies of encrypted backups; and securely store backups in differing locations;
• Implement policies and procedures to verify that a person or entity seeking access to ePHI is the one claimed;
• Implement policies and procedures for electronic information systems that maintain ePHI to allow access only to those persons or software programs that have been granted access rights;
• Revise its policies and procedures relating to the uses and disclosures of PHI to ensure that its workforce members understand: 1) the circumstances under which PHI may be used and disclosed; 2) how to identify situations that constitute impermissible uses and disclosures of PHI; and 3) how and when to report situations that might constitute impermissible uses and/or disclosures of PHI;
• Revise its Breach Notification policies and procedures to ensure that its workforce members understand that, following a breach of unsecured PHI, affected individuals must be notified without unreasonable delay and in no case later than 60 (sixty) calendar days after the discovery of the breach, and that notification must be made to the HHS Secretary and, in certain circumstances, to the media; and
• Provide training to its workforce on HIPAA policies and procedures.

OCR will monitor Plastic Surgery Associates of South Dakota for two years to ensure compliance with the law.