The Heartbleed web security exploit was first publicized several weeks ago. In the time since then, numerous web-based services have let their users know (some more clearly than others) whether and how their data security was compromised by this OpenSSL flaw that has been open for about two years. This is one flaw, one exploit, but on a scale of 1 to 10, it has registered as an 11 on our collective consciousness. Fred Trotter notes in the MIT Technology Review that other similarly worrisome exploits do not get our attention in the same way, and that more health data leaks are likely in our future. He also cites others’ observations that many health IT vendors are not currently equipped to respond effectively to such exploits in a timely manner.
Everyone loves to hate HIPAA (including those who can’t spell it correctly). The core of the privacy and security protections in HIPAA (including the HITECH Act updates) is directed at improving the baseline of patient control (over who has the right to see which pieces of personal health information) so that we can all have greater confidence in EHR systems and related electronic systems handling our health care data. Rather than continuing to heap abuse on HIPAA, I think that critics should turn to addressing the underlying problems of our worldwide cloud infrastructure that, for all the benefits it enables, has its warts. Financial and health care data are regularly stolen on line, and health care records fetch a premium on the black market thanks to the richness of their data. The FBI shares Fred’s perspective regarding the likelihood of additional exploits targeting the health care sector (particularly given the January 1, 2015 target date for Meaningful Use compliance), so this is not the last we’ll be hearing about large-scale security exploits.
The deadline to transition to EHR is January 2015, which will create an influx of new EHR coupled with more medical devices being connected to the Internet, generating a rich new environment for cyber criminals to exploit. According to open source reporting from SANS, Ponemon, and EMC²/RSA, the health care industry is not technically prepared to combat against cyber criminals’ basic cyber intrusion tactics, techniques and procedures (TTPs), much less against more advanced persistent threats (APTs). The health care industry is not as resilient to cyber intrusions compared to the financial and retail sectors, therefore the possibility of increased cyber intrusions is likely.
FBI Cyber Division Private Industry Notification 140408-010. (Update 5/1/2014: Original PIN 140408-009 was updated to reflect new FBI contact information. A reader provided a copy.)
So what is to be done?
First, come to terms with the fact that privacy and security are not absolutes. The sooner you do, the happier you’ll be. As a family member of mine used to say, “It is what it is.”
Second, keep an eye on The Wall of Shame starting in early June. Health care data breaches experienced by covered entities under HIPAA involving 500 or more individuals must be reported to OCR within 60 days of discovery, and are posted there. (Breaches including fewer than 500 individuals are to be reported within 60 days of year-end.) So far, the only Heartbleed breaches we’ve heard about involve Canadian social security numbers and a newspaper. Information about breaches tied to Heartbleed may turn out to paint an interesting picture of health IT vendors serving covered entities. (I don’t think that the fact that the Heartbleed exploit was available for two years is, in and of itself, a breach worthy of notification. If it were, OCR could be deluged with breach notifications.)
Third, don’t just give up. Do your part to ensure that health data are kept as private and secure as possible. Policies and procedures should be in place — and should be followed (yeah, that) — to minimize the likelihood of a damaging breach, and the effect of a breach when it occurs. Take warnings to heart, and act on them in a timely fashion.
In the face of all these questions about inappropriate access to information in health records, concerns about the accuracy of data input into EHRs was recently identified as the leading concern consumers have about EHRs. So there are concerns about data coming into the system as well as concerns about data coming out of the system.
The industry has a lot of work to do to assure stakeholders that data privacy and security, as well as data integrity, are well in hand.
What are you going to do?
The Harlow Group LLC
Health Care Law and Consulting