July 03, 2012
Organizations that deal with private health information (PHI) should know how to properly handle such data in absence of a breach as well as how to respond after a breach occurs. According to the 2011 Computer Security Institute Crime and Security Survey, 97% of organizations report using anti-virus software, 95% use firewalls, 85% use anti-spyware software, 66% use data encryption and 62% use intrusion detection systems.
The Open Security Foundation's website, www.datalossdb.org, shows that despite taking meaningful steps to prevent security breaches, healthcare organizations accounted for 18% of the 1,032 data breaches reported in 2011 and 15% of all time. Further, according to the Ponemon Institute's 2011 Cost of Breach Study, the per capita costs of a breach for healthcare organizations average around $240 per record. When compared to retail, which averages $174 per record, education which averages $142 per record, and an average of $194 per record for all industries, healthcare organizations clearly have cause to be concerned about breach response expenses.
A healthcare organization or business associate1 should also be aware of the increased standards that have been imposed by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HITECH), the Privacy Rule and the Security Rule. One aspect of the Health Information Technology for Economic and Clinical Health Act act that may surprise many is the potential for the Office of Civil Rights (OCR) to fine an organization in absence of a breach.
In 2012, the Office of Civil Rights will conduct 150 audits of Covered Entities. If material security weaknesses are reported, a formal compliance review will follow. If that review uncovers blatant security violations, civil monetary fines could follow. Enforcement action around data breaches has been on the rise, and fines and penalties are being levied more frequently than in the past. The Department of Health & Human Services (DHHS) posts examples of resolutions including fines on their website. These initial audits are likely only the beginning of expanding regulatory oversight related to private health information.
Theodore Kobus III of Baker & Hostetler LLP, one of the national leaders of their Privacy, Security and Social Media Practice, advises the following regarding the current regulatory environment:
Data security extends beyond breach response and we are seeing an increasing number of regulatory investigations and fines stemming from how an organization responds to changes in its risks. A big part of being prepared includes understanding the nature and scope of the information you hold and how that data needs to be protected as risks in the organization evolve. For example, if you store data in an area that was once monitored by a security guard, but that area is now unoccupied, you may want to consider implementing other security measures.