United States: More Than A Family Affair: Six-Figure HIPAA Penalty Upheld For Unrepentant Home Care Agency Due To PHI Access By Spurned Spouse Of Employee

Last Updated: March 14 2016
Article by Jared L. Facher and Brian T. McGovern

Most Read Contributor in United States, August 2018


The Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 and the regulations promulgated thereunder ("HIPAA") should be now well-known to health care providers and health plans.  Under HIPAA's "Privacy Rule," covered entities must take steps to "reasonably safeguard" protected health information ("PHI") from any "intentional or unintentional use or disclosure that is in violation of the standards, implementation specifications or other requirements" of the Privacy Rule.  What is also becoming painfully clear is the growing financial and reputational risks to covered entities (and business associates) from a breach of HIPAA's Privacy or Security Rules stemming from unauthorized access or disclosure of PHI.

A recent ruling by a U.S. Department of Health and Human Services Administrative Law Judge ("ALJ") in the case of Director of the Office for Civil Rights v. Lincare, Inc., (Decision No. CR4505, Jan. 13, 2016), underscores the substantial penalties that a health care provider can face, even for relatively small-scale HIPAA violations, particularly if the provider determines to not settle with the Office of Civil Rights ("OCR") and instead contests the claimed violations.  In Lincare, a home care agency was found to have violated the Privacy Rule when an unauthorized person (the husband of a home health employee) was able to access patient records after the employee had removed records from the agency and taken them into the field as part of her job.  Specifically, the ALJ upheld a civil monetary penalty ("CMP") of $239,800 imposed by OCR – only the second time the OCR has sought CMPs for violations of HIPAA's Privacy Rule.  In a unique twist, OCR was alerted to the improper disclosures when the "estranged husband" of an employee of the home care agency complained to OCR that his wife allowed him to access documents containing PHI when she moved out of the marital home and left patient records behind.


Lincare Home Care Agency.  The respondent Lincare, Inc., d/b/a United Medical ("Lincare") supplies respiratory care, infusion therapy, and medical equipment to patients in their homes.  Lincare operates more than 850 branch locations in 48 states.  As Lincare explained, because its employees provide services in the homes of patients, they often remove patient records containing PHI from its branch locations.  Additionally, according to Lincare, managers of the various Lincare branch offices are required to maintain in their vehicles copies of Lincare's "Emergency Procedures Manual," which contains PHI of Lincare patients, so that employees could access patient contact information if an office was destroyed or otherwise inaccessible. 

PHI at Issue.  Faith Shaw was a Lincare branch manager in Wynne, Arkansas from October 2005 until July 2009 and maintained the "Emergency Procedures Manual," with PHI of 270 Lincare patients, as well as patient-specific documents of eight Lincare patients.  The patient records and Manual were apparently hard copies, and not electronically secured through encryption or authentication. 

Disclosure of the PHI.  Ms. Shaw kept the records containing PHI in her car and in her marital home, where her husband lived.  After a falling out with her husband Richard in August 2008, Ms. Shaw moved out of the marital home and left the documents containing the PHI behind in her home and car.  In November of 2008, Mr. Shaw, who was concededly not authorized to access the Lincare PHI, reported to Lincare and OCR that he had in his possession the Emergency Procedures Manual and the eight patient files left behind by his wife. 

OCR's Investigation and Action.  Following its investigation, OCR determined that Ms. Shaw:  (a) kept the PHI either in her vehicle or home, to which Mr. Shaw had access; (b) maintained the PHI without proper safeguards, (c) knew or reasonably should have known that the manner in which she kept the PHI did not reasonably safeguard such PHI, and (d) knew or reasonably should have known that Mr. Shaw had ready access to the PHI.  While acknowledging that the provision of home care services may require providers to remove PHI from their offices, OCR found that Lincare's policies and procedures did not adequately instruct its employees how to maintain PHI taken off the premises in a safe and secure manner and that Lincare did not properly record or track removed PHI.  Unlike the majority of HIPAA violations cited by OCR against providers, Lincare did not settle with OCR and instead determined to contest OCR's charges. 

In the absence of a settlement, OCR cited the following "aggravating" factors for imposing a substantial CMP against Lincare:

  • The length of time Lincare allowed employees to transport PHI away from the office without appropriate and reasonable safeguards; and
  • Lincare's failure to promptly review and enhance its HIPAA policies for safeguarding PHI taken off premises even after it was notified of the improper disclosure.

Accordingly, OCR sought to impose a CMP totaling 239,800 for Lincare's alleged violations of HIPAA's Privacy Rule, broken down as follows:

  • Impermissibly disclosing PHI:  OCR determined that Lincare had improperly disclosed PHI of 278 patients in November of 2008, which then carried a penalty of $100 per patient.  OCR imposed a penalty of $25,000 – the maximum penalty that could be applied in the 2008 calendar year.
  • Failure to safeguard PHI:  OCR determined that the failure to safeguard the PHI lasted from February 1, 2008 through November 17, 2008, which carried a penalty of $100 per day.  OCR imposed an additional penalty of $25,000 – the maximum penalty that could be applied in the 2008 calendar year.
  • Failure to implement policies and procedures to ensure compliance with the Privacy Rule:  OCR determined that Lincare's failure continued from (a) February 1, 2008 through December 31, 2008, at a penalty of $100 per day, with a maximum of $25,000 per calendar year, (b) January 1, 2009 through February 17, 2009, at a penalty of $100 per day, which totaled $4,800, and (c) from February 18, 2009 through July 28, 2009, during which time, penalty amounts were increased pursuant to the adoption of the HITECH Act, and which OCR determined to be $1,000 per day, totaling $160,000.

Significantly, in effectively stacking CMPs for separate HIPAA violations, one on top of another—although arising from the same breach or continued breach—OCR was able to multiply the aggregate size of penalties to $239,800.  At the same time, OCR determined that there was no basis to waive the imposition of the CMP because there was no evidence that the payment of a CMP would be excessive relative to the violations that it found. 

Lincare appealed OCR's determination before an ALJ.  OCR moved for summary judgment, arguing that there was no genuine issue of material fact concerning the HIPAA violations and that it was entitled to impose the aggregate CMP as a matter of law.  

The ALJ's Analysis

The ALJ granted OCR's motion for summary judgment, finding that the evidence established that Lincare had violated HIPAA, and upheld the CMP of $239,800. 

Theft is No Defense to Improper Disclosures:  In its defense, Lincare claimed that it was not responsible for the improper disclosure because it was the victim of a theft.  Specifically, Lincare claimed that Mr. Shaw "stole" the PHI from his wife and "attempted to use it as leverage to induce his estranged wife to return to him."  The ALJ rejected this argument, concluding that Lincare was obligated to take "reasonable steps to protect its PHI from theft."  The ALJ explained that Lincare violated this obligation when Ms. Shaw took documents out of the office and left them in in her car or home, allowing her husband to access them; and then completely abandoned them.

Lincare's Policies Did Not Properly Address the Removal of PHI:  The ALJ also found that Lincare's privacy policy failed to properly address the security of records removed from the office for use in the field, and monitor removed records to ensure their return.  When asked about specific guidelines for safeguarding PHI taken out of its offices, Lincare's Corporate Compliance Officer replied that Lincare personnel "considered putting a policy together that said thou shalt not let anybody steal your protected health information."  The ALJ did not "consider this a serious response." 

Key Takeaways

Consider Settling with OCR to Avoid a CMP:  The OCR's imposition of a CMP, and the ALJ's decision to affirm this penalty, represents only the second time a CMP has been imposed for a violation of the HIPAA Privacy Rule, and the first one in which an ALJ ruled on the merits.  Typically, OCR attempts to resolve HIPAA violations informally, but could not reach such a resolution with Lincare in this case.  Had a resolution been reached, the OCR would likely not have sought and secured such a substantial CMP based on "aggravating factors," with the resultant fine likely to have been significantly lower. 

Consider Encryption or other Means for Accessing PHI Remotely:  Employees of home care agencies often need to access PHI in the field when providing services.  However, the provider should consider restricting access only through electronic devices, with appropriate encryption and user authentication, to prevent unauthorized users from accessing these records.

Update Policies and Procedures:  Policies and procedures should detail for employees when patient records can be removed from the office and taken into the field, and under what circumstances; and identify how such records containing PHI should be safeguarded from disclosure. 

Implement a System to Track Removed PHI:  Similarly, a system should be implemented to record and track the removal of records containing PHI so as to allow the health care provider to account for and maintain oversight over removed documents.

Regularly Train Employees:  Having detailed policies and procedures is not enough; all employees should be regularly trained on the HIPAA Privacy and Security Rules, and the agency's corresponding HIPAA policies and practices.  To reinforce training, to the extent any PHI is removed from the premises, employees should be continually reminded not to allow unauthorized persons—including a spouse or other family or friends—to access the records.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions