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ciate might be liable for the civil penalty but the covered entity still has responsi- bility for notifying the individuals and state and federal agencies such as HHS. “Then there’s the question of the cost

for mitigating the risk, for example,” Habte continues. “There are reputational issues, and there could be civil suits aris- ing from these actions. I think it’s impor- tant that agreements with business as- sociates that handle PHI are clear on the procedures for reporting, that there’s ad- equate diligence that these vendors real- ly do protect the information that’s being given to them and that they adequately address the issues related to indemnifi- cation or the costs that could occur if a breach were to take place.”

Stay Focused and Committed ASCs should not rest on their laurels just because they have not experienced

Even if the [HIPAA] law did not impose big penalties, patients have an expectation of privacy and protecting people’s privacy is the right thing to do.”

—R. Michael Scarano Jr., Foley & Lardner LLP

a security breach in the past, Jenkins says. “ASCs, because of the mobility of physicians and often less sophisti- cated systems, may be very vulnerable to breaches. And because ASCs exist in the public spotlight from a competi- tive and regulatory standpoint, a breach in an ASC can easily become a major public relations issue. But they are very avoidable.”

ASCs should do all they can to avoid breaches, Sturm says. “You don’t want

to disappoint your customers by hav- ing to reveal that their PHI got into the wrong hands. Also, the fact that you have to now report breaches to HHS and potentially have a significant fine levied against you should definitely get your attention. “Be really diligent, and educate, ed- ucate, educate,” she continues. “When- ever you see a situation where PHI isn’t handled well, you need to take that op- portunity to educate.”



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