Monthly Archives: November 2014
The provision of healthcare is changing at a rapid pace as healthcare providers endeavor to maintain maximum efficiency while navigating the technology rich climate. As a result of the reliance on electronic data, dental offices have become vulnerable to cyber security threats. The growing volume and sophistication of cyber-attacks suggest that dental practices will have to grow increasingly vigilant to ward off these threats. A breach of cyber security will inevitably lead to significant expenses, both financial and reputational, which can wreak havoc on a dental practice.
Many dentists believe that cyber criminals are not a threat to their small dental offices. However, when choosing between a large corporation or bank with security teams and firewalls preventing access to databases and a dental office with no firewall or security team, the dental practice will be the chosen target. In fact, many hackers specifically target small dental offices because they believe that the small business may not have the resources for sophisticated security devices and do not enforce employee security policies.
Dental practices are an increasing target for cyber criminals. These offices hold a vast amount of data, including names, health history, addresses, birthdates, social security numbers, and even banking information of hundreds, if not thousands, of patients. The threat of this information being stolen by a staff member or a cyber-criminal is great, and dental practice owners must address this concern before a theft creates a legal nightmare for the dental practice.
Healthcare organizations make up roughly 33% of all data security breaches across all industries and the healthcare industry is the most breached industry in the United States. According to the US Department of Health and Human Services, almost 21,000,000 health records have been compromised since September 2009. It has been shown that human error causes the majority of personal health information data breaches, and that actions of healthcare employees cause 3 times as many breaches as external attacks.
The most common causes of data breaches in healthcare organizations are theft, hacking, unauthorized access or disclosure, lost records and devices, and improper disposal of records. A significant proportion of healthcare breaches are a result of lost or stolen mobile devices, tablets and laptops. In addition, security breaches are not solely inflicted upon the large HMOs, as more than half of all organizations that suffer from security breaches have fewer than 1,000 employees.
The Health Insurance Portability and Accountability Act requires healthcare providers to maintain the privacy of patient health information and to take security measures to protect this information from abuse by staff members, hackers, and thieves. The penalties imposed upon health care providers for HIPAA violations are great. The monetary penalties can range from a fine of $100 to a fine of $50,000 per violation, with a $1,500,000 maximum annual penalty. In addition to the federal penalties, dentists may face penalties imposed at the state level as well as lawsuits filed by disgruntled patients whose health information has been compromised.
It is crucial for dentists to take steps to ensure that their practice is in compliance with HIPAA provisions regarding computer security. Because the majority of data security breaches occur when staff members fail to follow office procedures or exercise poor judgment, the location of computers in the dental office is key. All computers should be placed in areas where the computer screens are not visible to patients and visitors, and encrypted passwords should protect access to each computer. Passwords should contain mixed-case letters and include numbers or symbols and should be changed regularly. In addition, passwords should not be written down under keyboards or kept on desks or surfaces where the public may be able to access them. Dentists should ensure that all staff members understand the importance of maintaining the privacy of patient health information.
Every dental practice should have a policy that includes steps for safeguarding patient information and educate staff members as to how to comply with the office policy. A strict Internet and computer use policy should be enforced that prohibits staff members from checking personal e-mail accounts or visiting Internet sites that aren’t work-related. It is also important that dentists ensure that all firewalls, operating systems, hardware and software devices are up to date, strong and secure and that wireless networks are shielded from public view. Antivirus software should be installed on every computer, kept updated, and checked regularly.
When accessing office data remotely, dentists should use only trusted Wi-Fi hot spots and never use shared computers. Smartphones and tablets should be password protected to prevent easy access to patient information in case the device is lost or stolen. In addition, all hard copies of documents with patient information should be shredded. Finally, to ensure that your dental practice is HIPAA compliant, data transmitted to payers, health plans, labs and other healthcare providers may need to be encrypted to ensure that a hacker will not have access to this data.
Because dental practices are subject to heightened government enforcement and the scope of fines and penalties for data breaches have increased, many dental practices have relied on cyber insurance for protection in the event of a breach of cyber security. These insurance policies cover the cost of investigating a theft, compensate the insured for all state and federal fines and penalties imposed, and fund all related lawsuits and legal fees, thus relieving dentists of the financial and time burdens imposed as a result of the breach in security.
It would be prudent for all dentists to invest in data security and in the proper training of staff members as to acceptable use of office computers. If plans and policies are put in place proactively and steps are followed to ensure HIPAA security compliance, a dental practice should be able to prevent the significant cost and headache involved in responding to a cyber-breach.
If a security breach in a dental office does occur, it is imperative that appropriate action is taken immediately, which includes determining how the breach occurred, and the extent of the security breach. In addition, if a security breach does occur, the owner of a dental practice must be very careful whom they initially contact and provide information to. Any improper or accidental disclosure to a third-party other than legal counsel for the dental practice owner may be subject to the rules of discovery if litigation occurs, which could increase the liability exposure of the practice owner.
Stuart J. Oberman, Esq handles a wide range of legal issues for the dental profession including cyber security breaches, employment law, practice sales, OSHA, and HIPAA compliance, real estate transactions, lease agreements, noncompete agreements, dental board complaints, and professional corporations.
For questions or comments regarding this article please call (770) 554-1400 or visit http://www.obermanlaw.com
Oberman Law Firm is proud to be a sponsor of the 2014 AB Cooper Seminar through the North Georgia Dental Society. We look forward to seeing our friends and colleagues at this great event Friday, November 21. If you still need to register visit northgeorgiadentalsociety.org.
Protecting Practice Assets:
What Every Practice Owner Needs to Know
In today’s digital society, protecting confidential and proprietary practice information is next to impossible. Employees on a daily basis have access to an employer’s confidential information. Electronic information can be stored on a smart phone, flash drive, and in the cloud.
In many states, trade secrets are protected by the Uniform Trade Secrets Act. Generally, a practice’s patient list and other sensitive practice information are protected by the Act. The term trade secret is defined as technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of actual or potential patients or suppliers, which is not commonly known by or available to the public.
When a practice takes reasonable measures to protect its valuable and confidential information, and if the information is generally not known to the public, then a practice’s trade secrets will most likely be protected. In addition to patient lists and related data, many other forms of information may also be protected, such as business plans.
It is extremely important for a practice to have policies, procedures and agreements in place in order to protect a practice’s assets and intellectual property, before an employee leaves. Below is a checklist of items that a practice should consider in order to protect its valuable assets.
Confidentiality and Return of Records Policies.
A practice should have policies and procedures in place that clearly identify what is considered a protected trade secret [patient list, pricing, vendors, referrals, marketing data, business plans and projections, etc…]. In addition, if an employee resigns or is terminated, the practice should have a written procedure in place that will require the former employee to immediately return to the practice, all protected and confidential information.
Confidentiality and Non-Disclosure Agreements.
In order to protect a practice’s trade secrets, every employee should sign a confidentiality and non-disclosure agreement. The confidentiality and non-disclosure agreement may be part of a well prepared employee manual or a separate document.
Keep Confidential Information Confidential.
Information that is identified by a practice as a trade secret or considered confidential should be treated as such by all employees, or it may lose its confidential status. A practice should train it’s employees to take the necessary precautions in order to protect against the wrongful disclosure or misuse of confidential information.
If a practice permits an employee to use their own personal electronic devises for business purposes [cell phones, iPads, laptops, etc…], then a practice should have a written policy in place that will permit a practice to periodically inspect an employees electronic devise in order to ensure that confidential practice information is protected and secure.
In addition, if an employee resigns or is terminated, a practice should also have a written procedure in place that outlines specifically how a practice will be permitted to purge confidential information from the employees personal electronic devise upon departure. The information must be purged immediately upon an employee’s departure.
Non-Solicitation and Non-Compete Agreements.
A practice should have its key employees sign a non-solicitation and/or non-compete agreement. A non-compete agreement will prevent an employee from performing the same or similar services for a competitor, for a certain period of time, within a certain specified geographical area, for specific clients or other confidential relationships. A non-solicitation agreement will prevent a current or former employee from soliciting or contacting the practice’s patients. Both types of agreements must be designed to protect legitimate practice interests, be reasonably limited in duration and geographic scope, and be applied consistently, in order to be enforceable.
Immediately Cut Off System Access.
A practice should immediately cut off an employee’s access to information upon an employees planned or unplanned departure [or even in advance of an employee’s departure, if at all possible]. In addition, a practice should immediately change all of its passwords upon an employee’s departure, especially in those areas where the employee has access to confidential and protected practice information.
After an employee is no longer employed by a practice, the practice may want to consider sending out a reminder letter to the former employee, that sets forth the former employees post-employment contractual obligations [i.e., non-compete, non-solicitation, and non-disclosure of confidential information, etc…].
In many cases, the most valuable assets of a practice, is the practice’s intellectual property [patient lists, confidential company data, software, business plans, etc…], and the protection of these valuable assets may very well be necessary in order to ensure the viability of a practice. If a practice takes the required steps in order to protect its assets, then a practice should be in good position to prevent a devastating and potentially costly loss in the event of an employees departure.
Stuart J. Oberman, Esq. handles a wide range or legal issues for the dental profession including cyber security breaches, employment law, practice sales, OSHA and HIPAA compliance, real estate transactions, lease agreements, non-compete agreements, dental board complaints and professional corporations.
For questions or comments regarding this article please call (770) 554-1400 or visit www.obermanlaw.com.
If you would like Stuart J. Oberman, Esq. to speak at an event for your organization, please contact Amanda Lussiana, Marketing Coordinator (email@example.com)