Huping Zhou, a former research assistant for the University of California at Los Angeles (“UCLA”) Health System (“UHS”), appealed his conviction for having accessed the hospital’s electronic health record system without authorization in violation of HIPAA arguing that he did not know that it was illegal to so obtain the information.
The indictment charged him with “knowingly and in violation of this part . . . obtaining individually identifiable health information relating to an individual.” 42 U.S.C. § 1320d-6(a)(2).
Zhou, who had entered a conditional plea of guilty, which preserved his right to appeal on this issue, contended that “knowingly” meant that he had to have known that obtaining the information was illegal.
In USA v. Huping Zhou, No. 10-50231, the United States Court of Appeals for the Ninth Circuit rejected his interpretation of the statute, holding that one only had to knowingly obtain the information (apparently as opposed to unintentionally or accidentally obtaining it) and affirmed his conviction. Stated perhaps more clearly, ignorance of the law is no excuse.
And don’t forget that UCLA was fined $865,000 for having insufficient security, which led to this breach.
The moral of this story is to know your HIPAA statute, the Department of Health and Human Services (“DHHS”) privacy and security regulations implementing HIPAA, and the changes to HIPAA brought about by the HITECH Act, particularly regarding criminal penalties. If you don’t know the penalties or the law or where you stand in terms of liability, please do yourself (yes, and me) a favor and buy my HIPAA books, CD, and training video and workbook available elsewhere on this website. As a matter of fact, just buy the entire Health Information Compliance Library, which also includes a year’s subscription to the Premium Member section of the website so that you can stay up to date on the latest developments in HIPAA law. It’s now not just about getting meaningful use compliant to get the incentives. It’s about, among other things, avoiding that free all-expenses-paid trip to Leavenworth.
