Most healthcare organizations that are HIPAA-covered entities have
attacked HIPAA's privacy rule and electronic transactions regulations
with a passion over the past year. But many are now taking a HIPAA
hiatus. Some are simply burned out, while many others believe they're
finished with HIPAA and can turn their backs on security until April
2005 nears.
That attitude should be cause for concern among information security
professionals and healthcare management who can be held accountable
for breaches and poor practices now. Instead, covered entities should
be hard at work on their information security programs without delay,
and there are several indisputable reasons for doing so.
First, and perhaps most misunderstood, the April 20, 2005, compliance
deadline is entirely artificial. Back in 1996 Congress built in a
two-year lead time for compliance with each of the HIPAA
Administrative Simplification rules. But a fundamental privacy
principle is that privacy requires security. For that reason former
Secretary of Health and Human Services (HHS) Donna Shalala, when
announcing the proposed privacy rule, reserved the right to delay its
enforcement until security was in place. And for the same reason, the
final privacy rule requires a full-blown information security program
-- administrative, physical and technical safeguards -- to assure the
confidentiality, integrity and availability of all forms of
protected health information. True, the privacy rule gives little
detail, but the intent and expectation for the healthcare industry is
clear. And the privacy rule became federally enforceable as of April
14, 2003, for all covered entities except small health plans.
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If that argument alone isn't sufficient to wake up management,
consider that privacy breaches usually also involve security
inadequacies, lapses or breaches. HHS's Centers for Medicare &
Medicaid Services has publicly acknowledged that it expects security
issues to be referred to its Office of HIPAA Standards, which is
responsible for security enforcement. Approximately 1,800 privacy
complaints were filed in the first six months or so following the
April 14, 2003, deadline. While some complaints were dismissed and
some resolved, others are under further investigation -- even criminal
investigation -- by the U.S. Department of Justice.
HHS has stated that it seeks compliance, and it prefers to work with
covered entities that demonstrate sincere intent, rather than act
punitively. This message suggests that organizations making a good
faith effort have little to fear from the U.S. government. But what
about the public? The HIPAA-mandated privacy notice has raised
healthcare privacy and security awareness among patients and plan
members. That heightened awareness is likely to lead to more legal
action and more negative publicity surrounding privacy and security
weaknesses in healthcare organizations than ever before.
So what excuse for poor security will be defensible in court, or
sound reasonable on TV or in the local papers? Healthcare executives
should be asking themselves this uncomfortable question now. It's
doubtful that "we didn't have to have this in place until 2005" will
carry any weight with judges, juries or patients. On the contrary,
the public is more likely to wonder why common sense security
protections weren't in place long ago.
Finally, information security professionals know that it's simply
good business practice to have a formal, documented, ongoing
information security program that helps assure standardization,
consistency, predictability and, of course, protection of information
assets. So let's get management on board and move ahead with framing
and implementing comprehensive information security programs in
healthcare organizations across the country.
About the author
Kate Borten, CISSP, is president of The Marblehead Group Inc. and has
more than 20 years experience designing, implementing and
integrating healthcare information systems. Borten is the author of
HIPAA Security Made Simple (HCPro Inc. 2003).
