Breach, Compliance Management, Data Security

Feds will weigh whether cyber best practices were followed when assessing HIPAA fines

The Department of Health and Human Services (HHS) will now consider whether organizations followed best practices for protecting medical information before assessing fines for violation of the Health Insurance Portability and Accountability Act.

The new rule, which President Trump signed into law last week, amends the Health Information Technology for Economic and Clinical Health Act so that the HHS secretary could forgo fines or cut short an investigation if a organization can show it implemented best practices for protecting health information for at least a year. Those best practices would need to comply with recommendations from or protecting data from the National Institute of Standards and Technology or some other government endorsed standards body.

Linda Malek, chair of the Healthcare and Privacy & Cybersecurity practices at law firm Moses & Singer, said that this is a positive development for chief information security officers.

"If there is an expectation that industries follow best practices, then we should reward them for it," she said.

HIPAA, of course, places a number of requirements upon entities to safeguard the protected health information of patients, and to strictly control when PHI can be divulged, and to whom. The penalty structure for a violation of HIPAA laws is tiered, with HHS fines based on a number of “general factors” and the seriousness of the HIPAA violation.

HIPAA does require a labyrinthine system of cybersecurity controls. Some are optional, but nonetheless expected by HHS. Malek uses encryption as an example. When it was first becoming a standard, she said, the Health and Human Services Office of Civil Rights would say at conferences that health care entities were expected to use encryption even if it wasn't explicitly required by law.

Malek believes that the amendments will formally recognize companies that go through those processes when it counts the most – that is, when a regulator is investigating them.

Industry groups have backed the amendments since they were first introduced. The Healthcare and Public Health Sector Coordinating Council, the government recognized coordinating council for healthcare, wrote to the Senate in support of the bill in December:

"[T]here is a perception among many in health care that regulatory enforcement actions taken under the Health Insurance Portability & Accountability Act (HIPAA) have applied severe penalties against organizations victimized by cyber-attacks in spite of their well-resourced programs that employ industry-best cybersecurity practices. The bill rebalances this inequity."

Joe Uchill

Joe is a senior reporter at SC Weekly, focused on policy issues. He previously covered cybersecurity for Axios, The Hill and the Christian Science Monitor’s short-lived Passcode website.

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