My entity just experienced a cyber-attack! What do we do now?
We’ve been hacked! What do we do next? This is common question that I’ve been asked by healthcare providers, insurance firms, and medical groups after they have been hit by a cyber-attack that exposed their patient or client records. The problem with this question is that it was asked after the attack and not before, which translates to heftier financial penalties and possible lawsuits due to negligence, simply because they didn’t have an incident policy in place which is required by HIPAA.
Sadly, I was asked this question again, just three weeks ago, when an organization’s IT Director contacted my consultancy to assist them after being hit by a ransomware attack which compromised all their servers. If your entity just experienced a ransomware attack or other cyber-related security incident, there is no time to wonder what to do. Take note of the Quick Response Guide below. It briefly explains the steps for a HIPAA covered entity or its business associate (the entity) to take in response to a cyber-related security incident.
A Quick-Response Checklist from the HHS, Office for Civil Rights (OCR)
In the event of a cyber-attack or similar emergency an entity:
Must execute its response and mitigation procedures and contingency plans.
For example, the entity should immediately fix any technical or other problems to stop the incident. The entity should also take steps to mitigate any impermissible disclosure of protected health information,iii which may be done by the entity’s own information technology staff, or by an outside entity brought in to help (which would be a business associate,iv if it has access to protected health information for that purpose).
Should report the crime to other law enforcement agencies
Which may include state or local law enforcement, the Federal Bureau of Investigation (FBI), and/or the Secret Service. Any such reports should not include protected health information, unless otherwise permitted by the HIPAA Privacy Rule.v If a law enforcement official tells the entity that any potential breach report would impede a criminal investigation or harm national security, the entity must delay reporting a breach (see below) for the time the law enforcement official requests in writing, or for 30 days, if the request is made orally.
Should report all cyber threat indicators to federal and information-sharing and analysis organizations (ISAOs)
Including the Department of Homeland Security, the HHS Assistant Secretary for Preparedness and Response, and private-sector cyber-threat ISAOs. Any such reports should not include protected health information. OCR does not receive such reports from its federal or HHS partners.
Must report the breach to OCR as soon as possible, but no later than 60 days after the discovery of a breach affecting 500 or more individuals
Also, notify affected individuals and the media unless a law enforcement official has requested a delay in the reporting. OCR presumes all cyber-related security incidents where protected health information was accessed, acquired, used, or disclosed are reportable breaches unless the information was encrypted by the entity at the time of the incident or the entity determines, through a written risk assessment, that there was a low probability that the information was compromised during the breach. An entity that discovers a breach affecting fewer than 500 individuals has an obligation to notify: individuals without unreasonable delay, but no later than 60 days after discovery; and OCR within 60 days after the end of the calendar year in which the breach was discovered.
It is important to know, OCR considers all mitigation efforts taken by the entity during in any particular breach investigation. Such efforts include voluntary sharing of breach-related information with law enforcement agencies and other federal and analysis organizations as described above.