Last Updated on: 21st October 2023, 09:01 am

How Do Federal Defense Attorneys Handle HIPAA-Related Charges?

The Health Insurance Portability and Accountability Act (HIPAA) sets national standards for protecting sensitive patient health information. Healthcare providers can face civil or criminal penalties if they improperly access, use, or disclose protected health information (PHI).

Defense attorneys have an important role in advising clients on HIPAA compliance and representing them if regulators allege violations. This article provides an overview of how attorneys approach HIPAA-related cases.

Recognizing Noncompliance That Triggers Penalties

If regulators find a covered entity violated HIPAA, it can face civil monetary penalties. Examples of noncompliance include[1]:

• Failing to provide patients their HIPAA rights, like access to records
• Sharing PHI without authorization
• Failing to safeguard ePHI through encryption or access controls

More severe criminal penalties apply when someone knowingly obtains or discloses PHI without authorization. This requires clear proof the person knew their actions violated HIPAA.

To defend clients, attorneys must recognize noncompliance and understand regulators’ basis for alleging violations. They review the facts to identify any improper uses or disclosures of PHI and lapses in HIPAA compliance.

Advising Clients on HIPAA Compliance

A key part of handling HIPAA cases is helping clients improve compliance going forward. Attorneys explain the Privacy and Security Rules’ requirements so clients can update policies and safeguards.

Counsel may recommend steps like[2][3]:

• Conducting a risk analysis to find security gaps
• Implementing role-based access controls and auditing systems
• Using encryption and other technical safeguards
• Updating HIPAA training and ensuring workforce compliance
• Revising policies for PHI uses, disclosures, and patient rights

Proactive compliance helps demonstrate a client acted in good faith to follow HIPAA. It can also lead regulators to pursue corrective action instead of penalties.

Responding to Regulators and Asserting Defenses

If regulators send a notice of investigation or proposed penalties, the attorney crafts a response asserting defenses. Common arguments include[4]:

• No willful neglect: The client made good faith efforts to comply, and any lapse was inadvertent.
• No impermissible use/disclosure: There was a permitted rationale for accessing or sharing PHI.
• Reasonable safeguards: The client implemented reasonable security measures based on its resources.
• Improper penalties: The proposed fines exceed limits or incorrectly calculate violations.

The attorney negotiates with regulators to have claims dismissed or penalties reduced. Settlements often include a corrective action plan and monitoring to ensure future compliance.

Avoiding Criminal Charges and Penalties

Criminal prosecution requires proving the defendant knowingly obtained, used, or disclosed PHI in violation of HIPAA. Fines can reach $250,000 and imprisonment up to 10 years[5].

Defense counsel will argue the client acted in good faith without intent to violate privacy rules. Where evidence of intent is unclear, attorneys negotiate with prosecutors to avoid charges.

If charges are filed, counsel seeks dismissal by contesting improper intent. They may also pursue plea agreements with reduced penalties.

Defending Against Private HIPAA Lawsuits

Individuals can also sue for HIPAA violations to recover damages. Common claims include[6]:

• Negligence – Failing to safeguard PHI with reasonable care
• Breach of confidentiality – Disclosing PHI without authorization
• Invasion of privacy – Using PHI in an unlawful, offensive manner

Attorneys defend against lawsuits by contesting liability elements like duty, breach, and harm. They argue the defendant exercised proper care and plaintiffs cannot prove damages from the alleged violation.

Settlements can resolve cases without admissions of liability. HIPAA does not allow private suits for statutory damages, only actual damages.

Takeaways

Defending HIPAA cases requires understanding the law’s complex privacy and security standards. Counsel experienced with healthcare regulations are best suited to advise clients and challenge regulators’ allegations.

Vigilant compliance, prompt response to investigations, and assertive defenses are key to avoiding substantial penalties. Proactive risk analysis and training can also help prevent violations and enforcement actions.