Category Archives: Policy/Privacy/Politics

Dark Side of the Moon

220px-Dark_Side_of_the_Moon copyAs you’ve likely noticed, we attempt to liven up the world of HIPAA and all things related…it isn’t easy.  HIPAA gets modified, medical records are breached (again), someone sues someone else, etc., etc., etc.  After awhile, the entire discussion sounds a bit like a broken record skipping.

Thats why we like to find that pristine copy of “Dark Side of the Moon” hidden in the back of the vintage record shop, and put it on the turntable.  It hasn’t been played since 1978 and it still creates static as you pull it from the record jacket.  It’s this unfettered, non-skipping record that allow one to break through the annoying background noise to try to figure out how song #3, “On the Run,” relates to song #6, “Money”…remember how you’d listen to the whole album/conversation to put together the big picture? (PS: if we have to explain these references because you’ve never heard of Pink Floyd or an LP record, then this entry isn’t for you…go to another browser window immediately).

When we read the following article by Al Saikali, we had one of those “found a pristine copy of Dark Side of the Moon” moments.  Mr. Saikali describes how, in Resnick/Curry v. AvMed, Inc. in the Southern District Court of Florida, a settlement was reached for $3,000,000 in the loss of two laptops containing un-encrypted patient insurance information.  In the settlement, the 11th Circuit Court wrote an opinion supporting the plaintiff’s contention that although the litigants had not been shown to suffer damage (yet), a portion of the insured’s premiums were supposedly to have gone to the securitization (e.g. encryption) of patient data, employee training on proper HIPAA protocols, etc.  Given that the defendant did not, apparently, spend $ in those areas (as evidenced by the breach), the plaintiffs had standing to sue.  Apparently the defendants took this as writing on the wall and decided to settle.

So how does this take us back to the “Dark Side of the Moon” reference?  Well, we’ve been keeping track, and this past year has been quite interesting on the breach litigation front.  First, Clapper v. Amnesty International said there had to be proven harm in order for the plaintiff to win in a breach case…one would think this would have emboldened the defendants in Resnick/Curry v. AvMed, but read on.  Subsequently, Hinchy v. Walgreens pointed out that HIPAA could be used as a weapon in breach cases regardless of harm, and by private citizens no less, where it illuminated that a Covered Entity had not met the industry standard for patient data security.  Now, in Resnick/Curry v. AvMed, Inc., we have a settlement, based in large part on a Circuit Court opinion, pointing out that, regardless of harm, the plaintiffs had a basis to sue on the expectation that some of their premium was going toward securing their patient data and it was not apparently secured.

The final outcome is that there is no final outcome.  There appears to be a balance establishing itself in the courts.  Proof of harm in a breach is being balanced by an expectation that patient data is secured according to industry standards (i.e. HIPAA).  There may indeed be a test case that makes its way to Supreme Court some day, tilting this balance one way or the other, but in the interim this is where we appear to be.

Now, as for the link between “On the Run” and “Money,”, come on, really?  And on that note, it is time for us advance the turntable arm to the last two songs, “Brain Damage” & “Eclipse,” and bid you adieu.


Take 15 U.S.C. §1681b…Please

Henny_YoungmanTake 15 U.S.C. §1681b…Please (sorry, I couldn’t resist the Henny Youngman reference there).  It regulates the sale of consumer reports which are essentially aggregated data.  The sale of aggregated data is big business, and Data Aggregators serve a number of valuable functions.  Their data allows us to apply for loans and mortgages, spend our business advertising $ effectively, ensure that our daycares aren’t employing pedophiles, etc. All due respect to Orwellian protestations (as they are valid), Data Aggregators play an important role in our society.

So we read with interest the investigative article detailing the sale of aggregated data to an identity theft ring by company owned by a well known Data Aggregator.  The article chastises said Data Aggregator for having sold data to an un-vetted “vendor”, and regulators for having missed the signs, but we took away a different message:  The regulatory environment controlling the sale of this data is convoluted.  It would be challenging for any business to ensure compliance and consumer safety while executing a viable business model.

15 U.S.C.§1681b details the “permissible purposes of consumer reports” (i.e. when it is allowable to sell aggregated consumer data).  While not a defense of the company involved in this particular situation, we do challenge you to read that U.S. Code, put yourself in the shoes of a Data Aggregator, and come up with a business model that allows you to vet all vendors, data requests, etc. in a cost effective manner with a 100% guarantee that a scam artist hasn’t infiltrated the ranks.

Fortunately, the mothers of the MiddleGate team taught us to never point out a problem without offering a solution.  The MiddleGate model, developed to work in the world of HIPAA, may be a model for the future of the Data Aggregation industry.  We believe this case points out that the future of Data Aggregators may not be in the sale of their data, but in the sale of the patterns their data matches to.  We used the model to navigate the complex world of HIPAA in a cost effective manner, and the same could be done to navigate 15 U.S.C.§1681b knowing that it is unlikely there will be any meaningful regulatory reform in the near future.  We used the model to share the knowledge our data conveyed without sharing underlying patient information.  In short, we used the model to maintain privacy in a world clamoring for information.


Security Analytics

UnknownWe try to avoid simply re-posting articles here.  However, a recent paragraph we read in “How Existing Security Data Can Help ID Potential Attacks” (from Information Week Reports) succinctly described a trend we are seeing and a market we are servicing:

Don’t think about security analytics as simply another product you need to buy; think about it first as a new approach to intelligent incident response. That new approach is needed because, frankly, what most of us are doing now isn’t working. By the time most security pros process disconnected forensic information, the bad guys already have your data. According to Verizon’s 2013 Data Breach Investigations Report, in over half of reported incidents, it took malicious hackers only a few hours to go from initial compromise to data exfiltration. However, 85% of breaches took organizations weeks or more to discover. Similarly, according to the Ponemon Institute’s Post Breach Boom study, it took an average of 80 days to discover and resolve a malicious breach. Eighty days!

Jules Verne wrote a novel about traveling around the world by balloon in 80 days…became a couple of movies.  Seems quaint now when we consider that our data can travel around the world in 80 seconds (or less), and that 80 days of undiscovered malicious data use allows a phenomenal amount of time for damage to be done.  We found that healthcare Covered Entities are sitting on vast troves of data that they simply cannot utilize (i.e. share to good effect) because of the restrictions placed on them by HIPAA/HITECH.    We solved that piece of the puzzle and decided to act because, quite honestly, the current silo approach to data security isn’t working and in the end, it is everyone’s medical records, privacy, and security that are at risk…and that mean’s everyone at MiddleGate and our extended families as well as our customers.

The New Standard

gold standardLead

GOLD or LEAD?  In medicine new treatment modalities would run through a series of steps before eventually (if ever) being accepted as a “standard of care.”  The business world goes through similar steps before accepting a new modality as a “best practice.”

Interestingly, it seems that the two worlds may be overlapping thanks to the Federal Government.  Although not strictly a “standard of care”, HIPAA is the mandated standard for maintenance of medical record privacy.  Recent court cases have explored the limits of HIPAA’s use as a defensive tool, as well as an offensive tool where medical record privacy issues are concerned (see “For Every HIPAA Yin, a HIPAA Yang” and “Clapper v. Amnesty International“).  Now it seems plausible that HIPAA’s utility may not stop once one crosses the line from the world of medical record privacy to the world at large.

Our company has had discussions regarding use of compliance with HIPAA Security and Privacy Rules as a competitive advantage in other industries such as telecommunications and finance, where privacy concerns are growing in the wake of recent news items.  Could it be that companies may one day tout their “ability” to protect one’s personal information on a level equal to the standards set by HIPAA for Protected Health Information?  Could it be that HIPAA standards will facilitate use of government agencies to protect against government intrusion?  The debate opened by this possible use of HIPAA standards as a best practice outside of healthcare is intriguing, and it represents the steps necessary for deciding if it can be a best practice.  We may be looking at the next gold standard…or the next batch of lead.  Either way, we may just be seeing the beginning of the debate.

For Every HIPAA Yin, a HIPAA Yang

YinYang-1I’m staring out the window at the East side of Portland, OR as I write this.  The clouds have finally started to roll in, likely spelling an end to a spectacular Portland summer.  The 60-90 days between late June and late September where we can count on sun, low humidity, and temperatures in the 80’s are Yin to 300-or-so days of cold, wet, and cloudy Yang.  Alas, Yin, we shall miss you, but Yang, you do keep things green and fresh.

The world of HIPAA is not without its Yin and Yang.  Last week we reviewed the HIPAA Yin implications of Clapper v. Amnesty International, showing its utility for defense against damages in breach cases.  Now consider the Yang: Hinchy v. Walgreens, and its use as a roadmap for the use of HIPAA as a weapon for individuals.  Allow me to expand.  The HIPAA Privacy Rule does not give individuals (you and I) the right to sue anyone for violation of our medical information privacy.  Rather, the Federal Govt. metes out fines, publicly shames, decreases reimbursement, and occasionally imprisons the guilty party(-ies).   However, as “The Pathology Blawgger” describes in a spectacular article, an enterprising attorney by the name of Neal Eggeson has been successful in using HIPAA to establish a standard of medical information privacy.   When there is deviation from this established medical information privacy standard Mr. Eggeson is able to show how individuals (e.g. his clients) are effected.

Thus, in the span of seven months, we’ve gone from use of HIPAA as a defense in the courts, to use of HIPAA as a weapon in the courts.  For every Yin a Yang.

Clapper v. Amnesty International

Landmarks, Memorials, Monuments

Those involved in Protected Health Information security are going to come to know this case well if they don’t already.  This US Supreme Court decision from February, 2013, at its core, declared that if damage from a breach can’t be proven, damages will not be awarded to the class action suit litigants.

Dry stuff, yes, but consider the implications in relation to HIPAA, HITECH, and the FInal Omnibus Rule.

First, given that HIPAA’s definition of breach has been modified from “Risk of Harm” to an Objective Standard of harm (including whether breached information was actually acquired or viewed), the Clapper decision backs up in the courts what has already been decided by the Final Omnibus Rule.

Second, with Safe Harbor definitions substantiating that inadvertent disclosure of Protected Health Information (PHI) to a person authorized to access PHI without further use or disclosure not permitted by the HIPAA Privacy Act does not constitute a breach, the Clapper decision again backs up in the courts what has already been clarified in the Final Omnibus Rule.

Still too dry for you?  Let us link this back to the real world.  Sutter Health recently experienced another breach, potentially adding to its $4.25 Billion class action suit woes from a previous breach.  What does Clapper v. Amnesty International mean to them?  Well, the Sutter Health legal defense team now has coverage on all fronts.  They may be able to prove that no harm has come of the breach, in which case they are in much better shape on the class action suit front, and potentially on the HIPAA/HITECH front as well (of course, Safe Harbor may still not be achieved).  No harm equates to loss for the class action litigants.  Loss for the class action litigants may very well remove a $4.25 Billion liability for Sutter Health.  You may rest assured that the Clapper decision is going to affect multiple cases in progress, and many cases to come in a similar manner.