Recently, the U.S. Department of Health and Human Services’ Office for Civil Rights (“OCR”) entered into a resolution agreement and record settlement of $16 million with Anthem, Inc. (“Anthem”) following Anthem’s 2015 data breach. That breach, affecting approximately 79 million individuals, was the largest breach of protected health information (“PHI”) in history.

Three years ago, in February 2015, OCR opened a compliance review of Anthem, the nation’s second largest health insurer, following media reports that Anthem had suffered a significant cyberattack. In March 2015, Anthem submitted a breach report to OCR detailing the cyberattack, indicating that it began after at least one employee responded to a spear phishing email. Attackers were able to download malicious files to the employee’s computer and gain access to other Anthem systems that contained individuals’ names, Social Security numbers, medical identification numbers, addresses, dates of birth, email addresses and employment information.

OCR investigated Anthem and found that it may have violated the HIPAA Privacy and Security Rules by failing to:

  • conduct an accurate and thorough risk analysis of the risks and vulnerabilities to the confidentiality, integrity and availability of electronic PHI (“ePHI”);
  • implement procedures to regularly review records of information system activity;
  • identify and respond to the security incident;
  • implement sufficient technical access procedures to protect access to ePHI; and
  • prevent unauthorized access to ePHI.

The resolution agreement requires Anthem to pay $16 million to OCR and enter into a Corrective Action Plan that obligates Anthem to:

  • conduct a risk analysis and submit it to OCR for review and approval;
  • implement a risk management plan to address and mitigate the risks and vulnerabilities identified in the risk analysis;
  • revise its policies and procedures to specifically address (1) the regular review of records of information system activity and (2) technical access to ePHI, such as network or portal segmentation and the enforcement of password management requirements, such as password age;
  • distribute the policies and procedures to all members of its workforce within 30 days of adoption;
  • report any events of noncompliance with its HIPAA policies and procedures; and
  • submit annual compliance reports for a period of two years.

In announcing the settlement with Anthem, OCR Director Roger Severino noted that the record-breaking settlement with Anthem was merited, as the company had experienced the largest health data breach in U.S. history. “Unfortunately, Anthem failed to implement appropriate measures for detecting hackers who had gained access to their system to harvest passwords and steal people’s private information.” Severino continued, “We know that large health care entities are attractive targets for hackers, which is why they are expected to have strong password policies and to monitor and respond to security incidents in a timely fashion or risk enforcement by OCR.”

The $16 million settlement with Anthem almost triples the previous record of $5.55 million, which OCR imposed in 2016 against Advocate Health Care Network. The settlement also comes two months after a U.S. District Court granted final approval of Anthem’s record $115 million class action settlement related to the breach.