Last month, the Health Insurance and Medical Privacy Act, or HIPAA, made your electronic medical records a lot safer. As welcome as these changes are, we need to go further. It is time for a federal law requiring encryption of any database that contains personally identifying information (PII).
Despite the lunacy now emanating from our nation's capital, despite the insane games of brinksmanship in Washington, I truly do believe the failure to encrypt personally identifiable information is of critical importance to the well being of Americans, and it's an issue we need to deal with right now.
A movement has been growing for some time now in the health care industry — a traditionally paper-based world is being converted into a digital one where electronic health records, or EHRs, rule the day. The push to digitize health records is picking up speed for a reason: it's good medicine. It saves money, and it saves lives. In some professions, missing a key detail might cost you a contract or a client; in medicine, it can mean losing a limb or a life. EHRs give an entire medical team — doctors, nurses, anesthesiologists, radiologists, pharmacologists —access to accurate, timely data about a patient, making it easier to communicate instructions, test theories, question assumptions, spot anomalies, correct errors. It helps to ensure that the right medications are administered in the right dosages. It puts the patient's whole medical history within easy reach. It simply makes sense.
But digitization has its downsides. The networked access that makes EHRs so convenient for medical teams also leaves them vulnerable to abuse by hackers and insider thieves. To a criminal, a patient's most sensitive PII, financial account data and insurance information can be used to open fraudulent accounts, obtain medical treatment, turn a quick profit on the black market, or commit crimes in their name. Whether by hacking a network, planting an employee or stealing a laptop, this new kind of criminal knows how to get their hands on this data, and the incentive is huge. And as we roll out the technology to implement the Affordable Care Act — with millions of Americans signing up for the first time — attempts to find and exploit weaknesses in the system are bound to increase.
While the federal government offers incentives to health care providers for deploying electronic health records systems (and penalties if they haven't by mid-2015), patients aren't so sure they want their health data digitized in the first place — and while patients may not be up to speed on all the details, they do know enough to be nervous. A new survey by Xerox, a leader in the digitization of medical data, suggests that consumers are edgy over EHRs. While 62 percent of those surveyed think EHRs will reduce health care costs and 73 percent see them improving quality of care, fully 83% are worried about security and privacy related issues — and 68 percent don't want their health records digitized at all.
Not Encrypted? Not Secure.
That's where encryption must come in. It is an indispensible tool for securing patients' electronically stored and transmitted data. It is so fundamental, in fact, that even though it has not been strictly "required" by HIPAA and HITECH — laws that establish regulatory frameworks to govern the handling of sensitive health-related data — it is, as a practical matter, impossible to comply with HIPAA regulations without using encryption.
In fact, without encryption, there really is no effective way to keep electronic patient data secure. And it's easy. That's right. There is nothing all that difficult about encrypting EHRs and other sensitive patient data — and when you consider the alternatives to encryption, and how damaging those alternatives are to patient and health care provider alike, you'd have to be insane not to encrypt.
Which brings us to the question of lunacy — because, insanely enough, unencrypted medical records are still leaked all the time. A case in point: the HHS Wall of Shame is a list, posted by the Secretary of Health and Human Services (HHS), of breaches of unsecured protected health information, also known as PHI, that affect 500 individuals or more. That list contains an embarrassing number of laptops that were lost or stolen with unencrypted PHI on their hard drives. And every one of those laptops came from someone who should have known better — but who, nevertheless, chose to put their patients at risk. Then, of course there are all those breaches involving insiders pilfering files, hackers piercing less than adequately secured databases and the newest threat to medical data security – mobile devices.
That risk can be considerable, ranging from identity theft to death. You read me right – death. When a criminal uses your identity and/or your insurance to obtain medical care, that criminal's medical facts (a blood type, allergies – or lack thereof) become part of your medical record— which could cause you to receive a transfusion, a medication or a course of treatment that could, in fact, kill you.
What the Final Rule Means
As of Sept. 23, though, they're putting themselves at risk as well. Last January, HHS strengthened privacy and security protections for health data put into place when HIPAA became law in the mid-1990s. The final rule, reflecting statutory changes rolled into the 2009 HITECH Act, beefs up patient privacy, boosts patients' rights to health information, enhances enforcement — and provides that electronic protected health information (ePHI) is "rendered unusable, unreadable, or indecipherable to unauthorized individuals," (in human speak – encrypted), whether at rest (think server) or in transit (think email). As long as it is encrypted — even if there's a security breach — a "covered entity" need not notify patients of the breach, nor pay fines as high as $1.5 million.
Sure sounds to me like encryption is a no-brainer. In the words of HHS Office of Civil Rights Director Leon Rodriguez: "Encryption is an easy method for making lost information unusable, unreadable and undecipherable." That assurance, in turn, "would qualify that entity for the safe harbors under our breach notification rule," says Rodriguez. Why would anyone not take that offer?
The outcry over NSA surveillance put encryption back in the spotlight. Revelations of NSA spying on phone calls, email, and other Internet traffic had an upside: it jolted Americans into realizing our private correspondence might not be so private after all — and, perhaps, caused us to reflect on the value of privacy. As we implement the changes to HIPAA and roll out the online health exchanges at the heart of the ACA, our obligation to the American people is to do this right and protect them well. As Galen said: "First, do no harm." In a word: Encrypt.
Adam Levin is chairman and cofounder of Credit.com and Identity Theft 911. His experience as former director of the New Jersey Division of Consumer Affairs gives him unique insight into consumer privacy, legislation and financial advocacy. He is a nationally recognized expert on identity theft and credit.