Dental Practice Pays $10,000 to Settle Social Media Disclosures of Patients’ Protected Health Information

1 RESOLUTION AGREEMENT I. Recitals 1. Parties. The Parties to this Resolution Agreement (“Agreement”) are: A. The United States Department of Health and Human Services, Office for Civil Rights (“HHS”), which enforces the Federal standards that govern the privacy of individually identifiable health information (45 C.F.R. Part 160 and Subparts A and E of Part 164, the “Privacy Rule”), the Federal standards that govern the security of electronic individually identifiable health information (45 C.F.R. Part 160 and Subparts A and C of Part 164, the “Security Rule”), and the Federal standards for notification in the case of breach of unsecured protected health information (PHI) (45 C.F.R. Part 160 and Subparts A and D of 45 C.F.R. Part 164, the “Breach Notification Rule”). HHS has the authority to conduct compliance reviews and investigations of complaints alleging violations of the Privacy, Security, and Breach Notification Rules (the “HIPAA Rules”) by covered entities and business associates, and covered entities and business associates must cooperate with HHS compliance reviews and investigations. See 45 C.F.R. §§ 160.306(c), 160.308, and 160.310(b). B. ELITE DENTAL ASSOCIATES - DALLAS, P.C. (“ELITE”), which is a covered entity, as defined at 45 C.F.R. § 160.103, and therefore is required to comply with the HIPAA Rules. ELITE is a general dental practice located in Dallas, TX. HHS and ELITE shall together be referred to herein as the “Parties.” 2. Factual Background and Covered Conduct. On June 5, 2016, the HHS, Office for Civil Rights (“OCR”) received a complaint alleging that ELITE impermissibly disclosed protected health information (PHI) on its Yelp® review page. Specifically, Complainant alleged that on June 4, 2016, ELITE had impermissibly disclosed her PHI when it responded to her post and provided her health information including her last name, details of her treatment plan, insurance and cost information. During OCR’s review of ELITE’s Yelp® review page, OCR discovered ELITE had also impermissibly disclosed PHI of other patients when it responded to those patients’ reviews without valid authorizations. On November 9, 2016, OCR notified ELITE of its investigation regarding its compliance with the Privacy Rule. OCR’s investigation indicated that the following conduct occurred (“Covered Conduct”): A. ELITE impermissibly disclosed PHI. See 45 C.F.R. § 164.502(a). B. ELITE failed to implement policies and procedures with respect to PHI, including releasing PHI on social media/public platforms. See 45 C.F.R. § 164.530(i). C. ELITE failed to have the minimum content required in its Notice of Privacy Practices. See 45 C.F.R. § 164.520(b). 2 3. No Admission. This Agreement is not an admission of liability by ELITE. 4. No Concession. This Agreement is not a concession by HHS that ELITE is not in violation of the HIPAA Rules and not liable for civil money penalties (“CMPs”). 5. Intention of Parties to Effect Resolution. This Agreement is intended to resolve OCR Transaction Number: 16-240465 and any potential violations of the HIPAA Rules related to the Covered Conduct specified in paragraph I.2 of this Agreement. In consideration of the Parties’ interest in avoiding the uncertainty, burden, and expense of further investigation and formal proceedings, the Parties agree to resolve this matter according to the Terms and Conditions below. II. Terms and Conditions 6. Payment. HHS has agreed to accept, and ELITE has agreed to pay HHS, the amount of $10,000 “Resolution Amount”). ELITE agrees to pay the Resolution Amount on the Effective Date of this Agreement as defined in paragraph II.14 by automated clearing house transaction pursuant to written instructions to be provided by HHS. 7. Corrective Action Plan. ELITE has entered into and agrees to comply with the Corrective Action Plan (“CAP”), attached as Appendix A, which is incorporated into this Agreement by reference. If ELITE breaches the CAP, and fails to cure the breach as set forth in the CAP, then ELITE will be in breach of this Agreement, and HHS will not be subject to the Release set forth in paragraph II.8 of this Agreement. 8. Release by HHS. In consideration of and conditioned upon ELITE’s performance of its obligations under this Agreement, HHS releases ELITE from any actions it may have against ELITE under the HIPAA Rules arising out of or related to the Covered Conduct identified in paragraph I.2 of this Agreement. HHS does not release ELITE from, nor waive any rights, obligations, or causes of action other than those arising out of or related to the Covered Conduct and referred to in this paragraph. This release does not extend to actions that may be brought under section 1177 of the Social Security Act, 42 U.S.C. § 1320d-6. 9. Agreement by Released Parties. ELITE shall not contest the validity of its obligation to pay, nor the amount of, the Resolution Amount or any other obligations agreed to under this Agreement. ELITE waives all procedural rights granted under Section 1128A of the Social Security Act (42 U.S.C. § 1320a- 7a) and 45 C.F.R. Part 160 Subpart E, and HHS claims collection regulations at 45 C.F.R. Part 30, including, but not limited to, notice, hearing, and appeal with respect to the Resolution Amount. 10. Binding on Successors. This Agreement is binding on ELITE and its successors, heirs, transferees, and assigns. 11. Costs. Each Party to this Agreement shall bear its own legal and other costs incurred in connection with this matter, including the preparation and performance of this Agreement. 3 12. No Additional Releases. This Agreement is intended to be for the benefit of the Parties only, and by this instrument the Parties do not release any claims against or by any other person or entity. 13. Effect of Agreement. This Agreement constitutes the complete agreement between the Parties. All material representations, understandings, and promises of the Parties are contained in this Agreement. Any modifications to this Agreement shall be set forth in writing and signed by all Parties. 14. Execution of Agreement and Effective Date. The Agreement shall become effective (i.e., final and binding) upon the date of signing of this Agreement and the CAP by the last signatory (“Effective Date”). 15. Tolling of Statute of Limitations. Pursuant to 42 U.S.C. § 1320a-7a(c)(1), a CMP must be imposed within six (6) years from the date of the occurrence of the violation. To ensure that this six-year period does not expire during the term of this Agreement, ELITE agrees that the time between the Effective Date of this Agreement (as set forth in Paragraph 14) and the date the Agreement may be terminated by reason of ELITE’s breach, plus one-year thereafter, will not be included in calculating the six (6) year statute of limitations applicable to the violations which are the subject of this Agreement. ELITE waives and will not plead any statute of limitations, laches, or similar defenses to any administrative action relating to the covered conduct identified in paragraph I.2 that is filed by HHS within the time period set forth above, except to the extent that such defenses would have been available had an administrative action been filed on the Effective Date of this Agreement. 16. Disclosure. HHS places no restriction on the publication of the Agreement. In addition, HHS may be required to disclose material related to this Agreement to any person upon request consistent with the applicable provisions of the Freedom of Information Act, 5 U.S.C. § 552, and its implementing regulations, 45 C.F.R. Part 5. 17. Execution in Counterparts. This Agreement may be executed in counterparts, each of which constitutes an original, and all of which shall constitute one and the same agreement. 18. Authorizations. The individual signing this Agreement on behalf of ELITE represents and warrants that he is authorized by ELITE to execute this Agreement. The individual signing this Agreement on behalf of HHS represents and warrants that she is signing this Agreement in her official capacities and that she is authorized to execute this Agreement. 4 For ELITE DENTAL ASSOCIATES - DALLAS, P.C. _______/s/_____________________ ___9/30/2019__________ Dr. Andy Chang, D.D.S. Date Chief Executive Officer ELITE DENTAL ASSOCIATES - DALLAS, P.C. For the United States Department of Health and Human Services _______/s/_____________________ ___9/30/2019__________ Marisa M. Smith, Ph.D. Date Regional Manager Office for Civil Rights Southwest Region 5 CORRECTIVE ACTION PLAN BETWEEN THE DEPARTMENT OF HEALTH AND HUMAN SERVICES AND ELITE DENTAL ASSOCIATES - DALLAS, P.C. I. Preamble ELITE DENTAL ASSOCIATES - DALLAS, P.C. (“ELITE”) hereby enters into this Corrective Action Plan (“CAP”) with the United States Department of Health and Human Services, Office for Civil Rights (“HHS”). Contemporaneously with this CAP, ELITE is entering into a Resolution Agreement (“Agreement”) with HHS, and this CAP is incorporated by reference into the Resolution Agreement as Appendix A. ELITE enters into this CAP as part of consideration for the release set forth in paragraph II.8 of the Agreement. II. Contact Persons and Submissions A. Contact Persons ELITE has identified the following individual as its authorized representative and contact person regarding the implementation of this CAP and for receipt and submission of notifications and reports: Andy Chang, D.D.S. Chief Executive Officer ELITE DENTAL ASSOCIATES - DALLAS, P.C. 3600 McKinney Avenue, Suite 230 Dallas, TX 75204 HHS has identified the following individual as its authorized representative and contact person with whom ELITE is to report information regarding the implementation of this CAP: Marisa M. Smith, Ph.D. Regional Manager Office for Civil Rights, Southwest Region U.S. Department of Health and Human Services 1301 Young Street, Suite 1169 Dallas, TX 75202 ELITE and HHS agree to promptly notify each other of any changes in the contact persons or the other information provided above. 6 B. Proof of Submissions. Unless otherwise specified, all notifications and reports required by this CAP may be made by any means, including certified mail, overnight mail, or hand delivery, provided that there is proof that such notification was received. For purposes of this requirement, internal facsimile confirmation sheets do not constitute proof of receipt. III. Effective Date and Term of CAP The Effective Date for this CAP shall be calculated in accordance with paragraph II.14 of the Agreement (“Effective Date”). The period for compliance (“Compliance Term”) with the obligations assumed by ELITE under this CAP shall begin on the Effective Date of this CAP and end two (2) years from the Effective Date, unless HHS has notified ELITE under Section VIII hereof of its determination that ELITE breached this CAP. In the event of such a notification by HHS under Section VIII hereof, the Compliance Term shall not end until HHS notifies ELITE that it has determined that the breach has been cured. After the Compliance Term ends, ELITE shall still be obligated to submit the final Annual Report as required by Section VI and comply with the document retention requirement in Section VII. IV. Time In computing any period of time prescribed or allowed by this CAP, all days referred to shall be calendar days. The day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not one of the aforementioned days. V. Corrective Action Obligations ELITE agrees to the following: A. Policies and Procedures 1. ELITE shall develop, maintain, and revise, as necessary, its written policies and procedures (“policies and procedures”) to comply with the Federal standards that govern the privacy and security of individually identifiable health information. ELITE’s policies and procedures shall include, but not be limited to, the minimum content set forth in Section V.C. 2. ELITE shall provide such policies and procedures, consistent with paragraph 1 above, to HHS within 30 calendar days of the Effective Date for review and approval. Upon receiving any required changes to such policies and procedures from HHS, ELITE shall have 30 calendar days to revise the policies and procedures accordingly and provide the revised policies and procedures to HHS for review and approval. 3. ELITE shall implement such policies and procedures within 30 calendar days after receiving HHS’ final approval. 7 B. Distribution and Updating of Policies and Procedures 1. ELITE shall distribute the policies and procedures identified in Section V.A to all members of the workforce within 30 calendar days of HHS’ approval of such policies and to new members of the workforce within 30 calendar days of their beginning of service. 2. ELITE shall require, at the time of distribution of such policies and procedures, a signed written or electronic initial compliance certification from all members of the workforce, stating that the workforce members has read, understands, and shall abide by such policies and procedures. 3. ELITE shall assess, update, and revise, as necessary, the policies and procedures at least annually. ELITE shall provide the revised policies and procedures to HHS for review and approval. Upon receiving any recommended changes to such policies and procedures from HHS, ELITE shall have 30 calendar days to revise such policies and procedures accordingly and provide the revised policies and procedures to HHS for review and approval. Within 30 calendar days of the effective date of any approved, substantive revisions, ELITE shall distribute such revised policies and procedures to all members of its workforce, and to new members as required by Section V.B.1, and shall require new compliance certifications. 4. ELITE shall not involve any member of its workforce in the use or disclosure of PHI if that workforce member has not signed or provided the written or electronic certification required by paragraphs V.B.2 and V.B.3 of this section. C. Minimum Content of the Policies and Procedures 1. Revision to Policies and Procedures that address permissible and impermissible uses and disclosures of PHI and appropriate administrative, technical, and physical safeguards to protect the privacy of PHI. 2. A revision to ELITE’s authorization form to comply with the requirements of the Privacy Rule, including a description of how the individual may revoke the authorization and a statement regarding a covered entity’s ability or inability to condition treatment, payment, enrollment, or eligibility for benefits on the authorization. (Authorizations – 45 C.F.R. § 164.508) A process for evaluating and approving authorizations requesting the use or disclosure of PHI by ELITE, before ELITE makes such uses or disclosures. 3. A revision to ELITE’s Notice of Privacy Practices to comply with the requirements of the Privacy Rule, including a description of the uses and disclosures of PHI for which ELITE is required to obtain an individual’s authorization (e.g., posting on ELITE’s website, social media pages and/or other public platforms). (Notice of Privacy Practices – 45 C.F.R. § 164.520(b)) 8 4. Identification of ELITE personnel or representatives whom workforce members, agents, or business associates may contact in the event of any inquiry or concern regarding compliance with HIPAA in relation to these activities. 5. Internal reporting procedures which will require all workforce members to report to the designated person or office at the earliest possible time any potential violations of the Privacy, Security or Breach Notification Rules or of ELITE’s privacy and security policies and procedures. Such reporting procedures shall require ELITE to promptly investigate and address all received reports in a timely manner. 6. Application and documentation of appropriate sanctions (which may include retraining or other instructive corrective action, depending on the circumstances) against members of ELITE’s workforce, including senior level management, who fail to comply with the Privacy, Security or Breach Notification Rules or ELITE’s privacy and security policies and procedures. This content shall include a description of the sanctions; a timeframe in which ELITE will apply and document sanctions for violations of the HIPAA Rules or of ELITE’s privacy, security or breach policies or procedures; the manner in which ELITE will document the sanctions; and where ELITE will store or retain such documentation (e.g., personnel file). D. Reportable Events 1. During the Compliance Term, ELITE shall, upon receiving information that a workforce member may have failed to comply with its Privacy, Security, and Breach Notification policies and procedures, promptly investigate this matter. If ELITE, after review and investigation, determines that a member of its workforce has failed to comply with its Privacy, Security, and Breach Notification policies and procedures, ELITE shall notify HHS in writing within 30 calendar days. Such violations shall be known as Reportable Events. The report to HHS shall include the following: a. A complete description of the event, including the relevant facts, the persons involved, and the applicable provision(s) of ELITE’s Privacy, Security, and Breach Notification policies and procedures; and b. A description of the actions taken and any further steps ELITE plans to take to address the matter to mitigate any harm, and to prevent it from recurring, including application of any appropriate sanctions against workforce members who failed to comply with its Privacy, Security, and Breach Notification policies and procedures. 2. If no Reportable Events have occurred within a Reporting Period, ELITE shall so inform HHS in its Annual Report for that Reporting Period in accordance with section VI of this CAP. 9 E. Training 1. All members of ELITE’s workforce shall receive training on ELITE’s policies and procedures to comply with the Privacy Rule within 30 calendar days of the implementation of the policies and procedures, or within 30 calendar days of when they become a member of the workforce of ELITE. 2. Training shall cover all the topics that are necessary and appropriate for each member of the workforce to carry out that workforce member’s functions within ELITE. At a minimum, this shall include uses and disclosures for which an authorization is required. 3. Each workforce member shall certify, in electronic or written form, that he or she has received and understands the required training. The training certification shall specify the date training was received. All course materials shall be retained in compliance with Section VII. 4. ELITE shall review the training at least annually, and, where appropriate, update the training to reflect changes in Federal law or HHS guidance, any issues discovered during internal or external audits or reviews, and any other relevant developments. 5. ELITE shall not provide access to PHI to any member of its workforce if that workforce member has not signed or provided the written or electronic certification required by paragraph V.E.3. F. Issuance of Breach Notifications 1. Within 30 calendar days of the Effective Date, ELITE shall issue breach notices to any individuals, or the individuals’ personal representatives, whose PHI was disclosed by ELITE on its Yelp® page without a valid authorization. See 45 C.F.R. § 164.404. 2. Within 30 calendar days of the Effective Date, ELITE shall submit to HHS, through HHS’ breach portal, breach reports regarding the individuals in V.F.1. See 45 C.F.R. § 164.408. VI. Implementation Report and Annual Reports A. Implementation Report. Within 60 days after HHS approves the policies and procedures required by section V.A, ELITE shall submit a written report to HHS summarizing the status of its implementation of the requirements of this CAP. This report, known as the “Implementation Report” shall include: 1. An attestation signed by an owner or officer of ELITE attesting that the policies and procedures are being implemented, have been distributed to all appropriate members of the workforce, and that ELITE has obtained all of the compliance certifications required by Section V.B.2; 10 2. A copy of all training materials used for the training required by this CAP, a description of the training, including a summary of the topics covered, the length of the session(s) and a schedule of when the training session(s) were held; 3. An attestation signed by an owner or officer of ELITE attesting that all members of the workforce have completed the initial training required by this CAP and have executed the training certifications required by Section V.E.3; 4. An attestation signed by an owner or officer of ELITE listing all ELITE locations (including locations and mailing addresses), the corresponding name under which each location is doing business, the corresponding phone numbers and fax numbers, and attesting that each such location has complied with the obligations of this CAP; 5. An attestation signed by an owner or officer of ELITE stating that he or she has reviewed the Implementation Report, has made a reasonable inquiry regarding its content and believes that, upon such inquiry, the information is accurate, truthful, and complete. B. Annual Reports. The one-year period beginning on the Effective Date and each subsequent one-year period during the course of the period of compliance obligations shall be referred to as “the Reporting Periods.” ELITE shall submit to HHS, Annual Reports with respect to the status of and findings regarding ELITE’ compliance with this CAP for each of the annual Reporting Periods. ELITE shall submit each Annual Report to HHS no later than 30 days after the end of each corresponding Reporting Period. The Annual Report shall include: 1. A schedule, topic outline, and copies of the training materials for the training programs attended in accordance with this CAP during the Reporting Period that is the subject of the report; 2. An attestation signed by an owner or officer of ELITE attesting that it is obtaining and maintaining written or electronic training certifications from all persons that require training that they received training pursuant to the requirements set forth in this CAP; 3. A summary of Reportable Events identified during the Reporting Period and the status of any corrective and preventative action relating to all such Reportable Events; 4. An attestation signed by an owner or officer of ELITE attesting that he or she has reviewed the Annual Report, has made a reasonable inquiry regarding its content and believes that, upon such inquiry, the information is accurate, truthful, and complete. VII. Document Retention ELITE shall maintain for inspection and copying, and shall provide to HHS upon request, all documents and records relating to compliance with this CAP for six (6) years from the Effective Date. 11 VIII. Breach Provisions ELITE is expected to fully and timely comply with all provisions contained in this CAP. A. Timely Written Requests for Extensions. ELITE may, in advance of any due date set forth in this CAP, submit a timely written request for an extension of time to perform any act required by this CAP. A “timely written request” is defined as a request in writing received by HHS at least five (5) days prior to the date such an act is required or due to be performed. B. Notice of Breach of this CAP and Intent to Impose Civil Monetary Penalty. The parties agree that a breach of this CAP by ELITE constitutes a breach of the Agreement. Upon a determination by HHS that ELITE has breached this CAP, HHS may notify ELITE of: (1) ELITE’s breach; and (2) HHS’ intent to impose a civil money penalty (“CMP”) pursuant to 45 C.F.R. Part 160, or other remedies for the Covered Conduct set forth in paragraph I.2 of the Agreement and any other conduct that constitutes a violation of the HIPAA Privacy, Security, or Breach Notification Rules (“Notice of Breach and Intent to Impose CMP”). C. ELITE’s Response. ELITE shall have 30 calendar days from the date of receipt of the Notice of Breach and Intent to Impose CMP to demonstrate to HHS’ satisfaction that: 1. ELITE is in compliance with the obligations of the CAP that HHS cited as the basis for the breach; 2. The alleged breach has been cured; or 3. The alleged breach cannot be cured within the 30-day period, but that: (a) ELITE has begun to take action to cure the breach; (b) ELITE is pursuing such action with due diligence; and (c) ELITE has provided to HHS a reasonable timetable for curing the breach. D. Imposition of CMP. If at the conclusion of the 30-day period, ELITE fails to meet the requirements of Section VIII.C. of this CAP to HHS’ satisfaction, HHS may proceed with the imposition of a CMP against ELITE pursuant to 45 C.F.R. Part 160 for any violations of the Covered Conduct set forth in paragraph I.2 of the Agreement and for any other act or failure to act that constitutes a violation of the HIPAA Rules. HHS shall notify ELITE in writing of its determination to proceed with the imposition of a CMP pursuant to 45 C.F.R. Part 160. 12 For ELITE DENTAL ASSOCIATES - DALLAS, P.C. _______/s/_____________________ __9/30/2019___________ Andy Chang, D.D.S. Date Chief Executive Officer ELITE DENTAL ASSOCIATES - DALLAS, P.C. For United States Department of Health and Human Services _____/s/_______________________ __9/30/2019___________ Marisa M. Smith, Ph.D. Date Regional Manager Office for Civil Rights Southwest Region