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Rachel V. Rose, JD, MBA, advises clients on compliance and transactions in healthcare, cybersecurity, corporate and securities law, while representing plaintiffs in False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine in Houston. Rachel can be reached through her website, www.rvrose.com.
Encrypting data is a prudent measure for physicians who want to increase HIPAA compliance while diminishing their risk.
According to the HIPAA Final Omnibus Rule, section 164.304 sets forth the following definition: "Encryption means the use of an algorithmic process to transform data into a form in which there is a low probability of assigning meaning without use of a confidential process or key." Although encryption is considered an "addressable" issue, and not "required" or "standard," it really should be accounted for as "required." But why? Encrypting mobile devices, laptops, hard drives, servers, and electronic media (e.g., UBS drives and CD-ROMs) can prevent the practice from paying a large fine for a HIPAA breach.
As a reminder, both Concentra and QCA Health Plan paid over $2 million in combined fines to the Department of Health and Human Services, Office for Civil Rights. The "investigation revealed that Concentra had previously recognized in multiple risk analyses that a lack of encryption on its laptops, desktop computers, medical equipment, tablets and other devices containing electronic protected health information (PHI) was a critical risk," the Office for Civil Rights said. "While steps were taken to begin encryption, Concentra's efforts were incomplete and inconsistent over time, leaving patient PHI vulnerable throughout the organization. OCR's investigation further found Concentra had insufficient security-management processes in place to safeguard patient information."
The problems with not encrypting data and failing to conform to the other requirements associated with HIPAA and the HITECH Act can have further reaching consequences. According to a recent article by Absolute Software, "Protected health information is becoming increasingly attractive to cybercriminals with health records fetching more than credit card information on the black market. According to Forrester, a single health record can sell for $20 on the black market while a complete patient dossier with driver's license, health insurance information, and other sensitive data can sell for $500."
Any physician who has had their DEA number compromised or been involved in a government investigation involving Medicare fraud knows firsthand about the importance of implementing adequate security measures and internal audits. Investing in encryption is one way to mitigate financial, reputational, and legal liability.