A large New York hospital system learned this lesson the expensive way.  According to a U.S. Department of Health and Human Services (HHS) press release issued earlier this week, the Office for Civil Rights (OCR) investigated a hospital system breach back in 2010 involving the loss of an unencrypted flash drive. According to the press release, OCR provided technical assistance to the hospital system as a result of that breach.

The hospital system apparently didn’t follow or benefit from OCR’s technical assistance, as it reported a breach in 2013 involving the loss of an unencrypted flash drive. According to OCR,

Despite the previous OCR investigation, and [the hospital system’s] own identification of a lack of encryption as a high risk to ePHI, [the hospital system] permitted the continued use of unencrypted mobile devices.”

The hospital system then reported a third incident involving the theft of an unencrypted mobile device (an unencrypted personal laptop used by a resident surgeon) in 2017.  Although the laptop contained the PHI of only 43 patients, it wasn’t the size of the breach that likely triggered the $3 million payment amount.  The high payment amount seems directed at the hospital system’s apparent continuing failure to implement fairly straightforward security measures.

This hospital system had three strikes involving unencrypted devices before being hit with the $3 million resolution amount, and three important lessons can be learned from this resolution agreement. First, correct identified vulnerabilities. Second, when OCR offers technical assistance, follow it. And third, make sure you have a mobile device policy that requires encryption or addresses why encryption is not feasible.

OCR likely also considered the large size of the hospital system, and the relatively simple security policies and procedures the hospital system could have implemented to prevent the third breach when it imposed the $3 million penalty and two year corrective action plan.  However, even small covered entities and business associates should pay attention to this resolution agreement and take steps to minimize the risk of mobile device breaches.