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).