Nearly a year ago, as described in an earlier blog post, one of my favorite health industry journalists, Marla Durben Hirsh, published an article in Medical Practice Compliance Alert predicting physician practice compliance trends for 2014. Marla quoted Michael Kline’s prescient prediction that HIPAA would increasingly be used as “best practice” in actions brought in state court: “People will [learn] that they can sue [for privacy and security] breaches,” despite the lack of a private right of action under HIPAA itself. Now, peering ahead into 2015 and hoping to surpass Michael’s status as Fox Rothschild’s HIPAA soothsayer, I thought I would take a stab at predicting a few HIPAA hurdles that covered entities, business associates, and their advisors are likely to face in 2015.
1. More sophisticated and detailed (and more frequently negotiated) Business Associate Agreement (BAA) terms. For example, covered entities may require business associates to implement very specific security controls (which may relate to particular circumstances, such as limitations on the ability to use or disclose protected health information (PHI) outside of the U.S. and/or the use of cloud servers), comply with a specific state’s (or states’) law privacy and security requirements, limit the creation or use of de-identified data derived from the covered entity’s PHI, or purchase cybersecurity insurance. The BAA may describe the types of security incidents that do not require per-incident notification (such as pings or attempted firewall attacks), but also identify or imply the many types of incidents, short of breaches, that do. In short, the BAA will increasingly be seen as the net (holes, tangles, snags and all) through which the underlying business deal must flow. As a matter of fact, the financial risks that can flow from a HIPAA breach can easily dwarf the value of the deal itself.
2. More HIPAA complaints – and investigations. As the number and scope of hacking and breach incidents increases, so will individual concerns about the proper use and disclosure of their PHI. Use of the Office for Civil Rights (OCR) online complaint system will continue to increase (helping to justify the $2 million budgeted increase for OCR for FY 2015), resulting in an increase in OCR compliance investigations, audits, and enforcement actions.
The overall creation, receipt, maintenance and transmission of data will continue to grow exponentially and globally, and efforts to protect the privacy and security of one small subset of that data, PHI, will undoubtedly slip and sputter, tangle and trip. But we will also undoubtedly repair and recast the HIPAA privacy and security net (and blog about it) many times in 2015.
Have a Happy and Healthy HIPAA New Year!