Health IT Law Blog : Health IT Law Blog : Post & Schell: Law Firm : HIT & Electronic Health Records

On August 19, 2010, the "tiger team" advisory panel submitted a letter to the HIT Policy Committee, established pursuant to the HITECH Act, proposing new safeguards for personally identifiable information on health information exchanges.  Via Bloomberg Business Week:

The recommendations were developed in response to a specific set of privacy-related questions raised by the Office of the National Coordinator for Health Information Technology. They touch upon and clarify topics such as patient consent and the use of third-party service providers in the exchange of personally identifiable health information.

<...> One of the bigger recommendations relates to patient consent. The direct exchange of electronic patient data between health providers for treatment purposes does not require any additional patient consent, the panel noted. The same rules that apply to paper or faxed exchanges of health information should apply in the electronic realm as well.

HIT Policy Committee will have to review and approve the proposed safeguards.  You can read more about the proposed standards after the jump, and can read the letter in full by clicking here.

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A new survey by the Ponemon Institute, an organization dedicated to advancing responsible information and privacy management practices, found that almost all surveyed organizations did not substantially comply with HIPAA, including as modified by the HITECH Act.  The survey was conducted in November 2009, but, according to Ponemon, the results are not supposed to have changed much. 

Ponemon Institute's survey of 77 healthcare organizations, including 42 covered entities and 35 business associates, found (via BNA):

• 27 percent of the health care organizations had not started and were “barely aware” of what was required;
• 32 percent of the organizations were waiting for more details;
• 14 percent of organizations surveyed had a plan but were waiting for more details on the requirements;
• 21 percent of the organizations surveyed were just beginning to act on becoming compliant;
• 79 percent of organizations do not regularly have the required independent assessment or audit of their program to determine adequacy; and
• 57 percent reported having known deficiencies for privacy or security.

You can find the full survey here.

"Study Finds Majority of Health Care Entities Not Compliant with HIPAA, HITECH Provisions," BNA Health IT Law & Industry Report (May 24, 2010).

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The Office of National Coordinator for Health IT (ONC) published on its web site a white paper analyzing the policies behind obtaining consent for the purposes of electronic health information exchange.  The paper examined the concept of patient control of their health information, focusing on "the issues, nuanced considerations, and possible tradeoffs associated with the various consent options to help facilitate informed decision making."  While the paper was written by researchers at the George Washington University, under contract with ONC, ONC clearly stated in the preamble that this white paper does not actually represent the views of the ONC or HHS.

You can find the full paper (and the attachments) by clicking here.  You can view the executive summary by clicking here.

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There is little doubt that the healthcare industry must prepare for a growing number of - and expanding costs associated with - data breaches, particularly for breaches of protected health information.  Here are just a few notable reports on this subject:

• Infosecurity.com reported on a striking increase in attempts to hack into healthcare organizations, while the rate of hacking in other economic sectors remained flat:  "the last quarter of [2009] saw an average of 13 400 attempts to hack healthcare organizations, compared to an average of 6,500 in the first nine months."  According to researchers at SecureWorks, which produced the graph above, healthcare organizations are particularly vulnerable to such attacks because they "have to provide access to many external networks and web applications so as to stay connected with their patients, employees, insurers and business partners. This increases their risk to cyber attacks."

• Cnet News reported on similar findings by the Ponemon Institute, whose survey concluded that "Data breaches at U.S. companies attributed to malicious attacks and botnets doubled from 2008 to 2009 and cost substantially more than breaches caused by human negligence or system glitches."  The cost per compromised record involving a criminal act averaged $215, about 40% higher than breaches from negligence and 30% higher than those from glitches, the Ponemon survey found.

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The Office of National Coordinator for Health IT named 17 members of the newly formed privacy and security workgroup of the HIT Policy Committee.  According to Government Health IT:

The work group will be co-chaired by Deven McGraw, director of the Health Privacy Project at the Center for Democracy and Technology, and Rachel Block, executive director of the New York eHealth Collaborative and deputy commissioner for health IT transformation at the New York State Department of Health.

Their team will advise the Policy Committee on such matters as how safeguards for the exchange of health information should fit into the “meaningful use” test for health IT incentives that ONC has been working on.

The ONC has previously announced the establishment of a separate workgroup devoted to creation of a national health information network, which, of course, will have to deal with its own set of privacy and security concerns.  There is also a privacy and security workgroup under the HIT Standards Committee.

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On September 15, 2009, the HIT Standards Committee endorsed a set of privacy and security standards for electronic health record systems. 
These standards will be recommended to Dr. David Blumenthal, the National Coordinator for Health Information Technology, as a basis for establishing the privacy and security criteria for, inter alia, "certified EHR technology" as defined under the HITECH Act.  Eligible healthcare providers must meet the criteria for "meaningful use" of "certified EHR technology" in order to qualify for significant incentives available under the HITECH Act.

The committee’s Privacy and Security Workgroup included access control, authentication, authorization and transmission of health data among the requirements that electronic health record systems must include by 2011 in order to meet the definition of "certified EHR technology."   Specifically for 2011, the Standards Committee approved the Workgroup's recommendation to require certified products to provide the capabilities necessary to support the HIPAA and ARRA security and privacy requirements and best practices for “meaningful use.”  The endorsed privacy and security standards will become more rigorous in 2013 and 2015.

You can find the spreadsheet of endorsed privacy and security standards here.

You can also view the presentation from the Workgroup here.

"Federal panel okays EHR security, privacy standards," Government Health IT (September 15, 2009).

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