HHS settles with Affinity Health Plan in photocopier breach case

From HHS:

Under a settlement with the U.S. Department of Health and Human Services (HHS), Affinity Health Plan, Inc. will settle potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules for $1,215,780.  Affinity Health Plan is a not-for-profit managed care plan serving the New York metropolitan area.

Affinity filed a breach report with the HHS Office for Civil Rights (OCR) on April 15, 2010, as required by the Health Information Technology for Economic and Clinical Health, or HITECH Act. The HITECH Breach Notification Rule requires HIPAA-covered entities to notify HHS of a breach of unsecured protected health information.  Affinity indicated that it was informed by a representative of CBS Evening News that, as part of an investigatory report, CBS had purchased a photocopier previously leased by Affinity.  CBS informed Affinity that the copier that Affinity had used contained confidential medical information on the hard drive.

Affinity estimated that up to 344,579 individuals may have been affected by this breach. OCR’s investigation indicated that Affinity impermissibly disclosed the protected health information of these affected individuals when it returned multiple photocopiers to leasing agents without erasing the data contained on the copier hard drives.  In addition, the investigation revealed that Affinity failed to incorporate the electronic protected health information (ePHI) stored on photocopier hard drives in its analysis of risks and vulnerabilities as required by the Security Rule, and failed to implement policies and procedures when returning the photocopiers to its leasing agents.

“This settlement illustrates an important reminder about equipment designed to retain electronic information: Make sure that all personal information is wiped from hardware before it’s recycled, thrown away or sent back to a leasing agent,” said OCR Director Leon Rodriguez.  “HIPAA covered entities are required to undertake a careful risk analysis to understand the threats and vulnerabilities to individuals’ data, and have appropriate safeguards in place to protect this information.”

In addition to the $1,215,780 payment, the settlement includes a corrective action plan requiring Affinity to use its best efforts to retrieve all hard drives that were contained on photocopiers previously leased by the plan that remain in the possession of the leasing agent, and to take certain measures to safeguard all ePHI.

For more information on safeguarding sensitive data stored in the hard drives of digital copiers: http://business.ftc.gov/documents/bus43-copier-data-security. The National Institute of Standards and Technology has issued guidance on media sanitation: http://csrc.nist.gov/publications/drafts/800-88-rev1/sp800_88_r1_draft.pdf. OCR offers free training on compliance with the HIPAA Privacy and Security Rules for continuing medical education credit at http://www.medscape.org/sites/advances/patients-rights.

The HHS Resolution Agreement and CAP can be found on the OCR website athttp://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/affinity-agreement.html

As previously noted on this blog, on April 5, 2010, AHP had issued a press release about the breach after learning about it on March 17, 2010. As AHP informed PHIprivacy.net at the time, they reported to NYS that 409,262 NYS residents were affected, a figure that included former and current employees, providers, applicants for jobs, members, and applicants for coverage. That number was an estimate only, as they had not concluded their forensic investigation at the time.

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