HHS’ Office for Civil Rights Settles HIPAA Privacy and Security Rule Investigation with a Behavioral Health Provider

Deer Oaks Failed to Conduct a HIPAA Risk Analysis Prior to OCR’s Investigation

Today, the U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR) announced a settlement with Deer Oaks – The Behavioral Health Solution (Deer Oaks), a behavioral health provider, resolving potential violations under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules. Deer Oaks provides psychological and psychiatric services to residents of long-term care and assisted living facilities.

OCR enforces the HIPAA Privacy, Security, and Breach Notification Rules (the HIPAA 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 (PHI). The HIPAA Privacy Rule establishes national standards to protect individuals’ PHI; sets limits and conditions on the uses and disclosures of PHI; and gives individuals certain rights, including the right to timely access their health records. The HIPAA Security Rule establishes national standards to protect and secure our health care system by requiring administrative, physical, and technical safeguards to ensure the confidentiality, integrity, availability, and security of electronic PHI (ePHI). The Risk Analysis provision of the Security Rule requires a covered entity or business associate to conduct an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of ePHI held by that organization.

“Identifying potential risks and vulnerabilities to ePHI is a key step in preventing or mitigating breaches of protected health information,” said OCR Director Paula M. Stannard. “An accurate and thorough HIPAA risk analysis can minimize the exposure of ePHI from both malicious actors and inadvertent errors. Based on OCR’s experience enforcing potential HIPAA Security Rule violations, the covered entity or business associate under investigation will often have deficient risk analysis practices. Common deficiencies include lacking a risk analysis entirely or failing to update existing risk analyses when implementing new technologies or expanding operations that affect the security of ePHI.”

The settlement resolves an investigation that OCR initiated in May 2023 after receiving a complaint alleging that Deer Oaks impermissibly disclosed the ePHI of individuals, including patient names, dates of birth, patient identification numbers, facilities, and diagnoses, by making patient discharge summaries publicly accessible online. OCR’s investigation substantiated the allegations and verified that the ePHI was accessible publicly via the Internet. According to Deer Oaks, a coding error in a now discontinued pilot program for an online patient portal, caused the ePHI to be exposed and cached by search engine providers from at least December 2021 until May 19, 2023. OCR’s investigation found that Deer Oaks impermissibly disclosed the ePHI of 35 individuals when it allowed the discharge summaries and initial assessments of those individuals to be accessible to the public online.

OCR expanded the investigation in July 2024 after Deer Oaks experienced a breach on August 29, 2023, of its network resulting from a compromised account. A threat actor claimed to have exfiltrated data and demanded payment to prevent posting the ePHI on the dark web. Deer Oaks provided breach notifications to HHS, 171,871 affected individuals, and the media related to the August 2023 incident.

Based on its investigation into both incidents, OCR found that Deer Oaks failed to conduct an accurate and thorough risk analysis to determine the potential risks and vulnerabilities to the ePHI that it held.

Under the terms of the resolution agreement, Deer Oaks agreed to implement a corrective action plan that OCR will monitor for two years and paid $225,000 to OCR. Under the corrective action plan, Deer Oaks committed to take steps to ensure compliance with the HIPAA Rules and protect the security of ePHI, including:

• Annually reviewing and updating as necessary its risk analysis to determine the potential risks and vulnerabilities to the confidentiality, integrity, and availability of its ePHI;
• Developing and implementing a risk management plan to address and mitigate security risks and vulnerabilities identified in its risk analysis;
• Developing, maintaining, and revising, as necessary, certain written policies and procedures to comply with the HIPAA Rules; and
• Providing annual training for each workforce member who has access to PHI on Deer Oaks’ written HIPAA policies and procedures.

OCR recommends that health care providers, health plans, health care clearinghouses, and business associates that are covered by HIPAA take the following steps to mitigate or prevent cyber-threats:

• Identify where ePHI is located in the organization, including how ePHI enters, flows through, and leaves the organization’s information systems.
• Periodically conduct, and update as needed, a risk analysis and develop and implement a risk management plan to address the risks identified.
• Ensure audit controls are in place to record and examine information system activity.
• Implement regular review of information system activity.
• Utilize mechanisms to authenticate information to ensure only authorized users are accessing ePHI.
• Encrypt ePHI in transit and at rest to guard against unauthorized access to ePHI when appropriate.
• Incorporate lessons learned from incidents into the organization’s overall security management process.
• Provide workforce members with regular HIPAA training that is specific to the organization and to the workforce members’ respective job duties.

The resolution agreement and corrective action plan may be found at: https://www.hhs.gov/sites/default/files/ocr-hipaa-racap-deer-oaks.pdf

OCR is committed to enforcing the HIPAA Rules, which protect the privacy and security of individuals’ PHI. Guidance about the HIPAA Privacy Rule, Security Rule, and Breach Notification Rule, and the Security Rule’s Risk Analysis requirement, can also be found on OCR’s website.

If you believe that your or another person’s health information privacy or civil rights have been violated, you can file a complaint with OCR at https://www.hhs.gov/ocr/complaints/index.html.

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