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Privacy and Security: Joke or No Joke?

2 Mins read

The Wall of Shame welcomes Sutter Health. Another computer with unencrypted protected health information on over 4 million patients – gone. Now, those guys are pretty smart, so why don’t they encrypt all computers with PHI?  One of life’s persistent questions.

The Wall of Shame welcomes Sutter Health. Another computer with unencrypted protected health information on over 4 million patients – gone. Now, those guys are pretty smart, so why don’t they encrypt all computers with PHI?  One of life’s persistent questions.  I mean, I can accept the fact that a health plan operator like Cignet Health might have issues with getting a grip on HIPAA compliance, but Sutter Health?What were they thinking? Can’t happen here?  Encryption is a drag?  It’s an easy way to avoid major egg-on-face and to avoid spending significant coin on PR, credit reporting services, and potentially on court judgments — all in addition to significant administrative fines payable to HHS and state regulators.

So the federales are piloting the HIPAA audit program. I know it’s required by the HITECH Act, but who believes that it will motivate behavior change?  Anyone?  Sutter Health was clearly not motivated to seek a safe harbor that would have made the loss of 4 million patient records a non-event.  I know encryption can be a drag, but I’m not a techie. If you are, I invite you to educate me (and the other non-techies out there) on the question of how miserable it really is to have to deal with encrypted data; if you’re really a techie, write a program to enable light-touch encryption that doesn’t interfere with use of data.

Whether or not encryption is miserable, we should be asking: Why is this data on a barely secured computer (password-protected desktop) in the first place? Shouldn’t it be stored on a server that stays in a secure facility, or in a secure private cloud?

Furthermore, as data loss incidents like this keep happening — even among other industry leaders (see, e.g., Mass General) — perhaps we need a new framework for thinking about access to health information. If we knew for sure that employment and insurance decisions would not be affected by the availability of otherwise private health record information, perhaps we would be more sanguine about their release. Perhaps government resources would be better spent on beefing up education and enforcement in those arenas (vs. auditing and enforcing compliance with privacy and security standards).

David Harlow 
The Harlow Group LLC
Health Care Law and Consulting
 

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DAVID HARLOW is Principal of The Harlow Group LLC, a health care law and consulting firm based in the Hub of the Universe, Boston, MA. His thirty years’ experience in the public and private sectors affords him a unique perspective on legal, policy and business issues facing the health care community. David is adept at assisting clients in developing new paradigms for their business organizations, relationships and processes so as to maximize the realization of organizational goals in a highly regulated environment, in realms ranging from health data privacy and security to digital health strategy to physician-hospital relationships to the avoidance of fraud and abuse. He's been called "an expert on HIPAA and other health-related law issues [who] knows more than virtually anyone on those topics.” (Forbes.com.) His award-winning blog, HealthBlawg, is highly regarded in both the legal and health policy blogging worlds. David is a charter member of the external Advisory Board of the Mayo Clinic Social Media Network and has served as the Public Policy Chair of the Society for Participatory Medicine, on the Health Law Section Council of the Massachusetts Bar Association and on the Advisory Board of FierceHealthIT. He speaks regularly before health care and legal industry groups on business, policy and legal matters. You should follow him on Twitter.
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