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The Health Care Industry Cybersecurity Task Force Prompts HHS to Issue a Revised HIPAA Breach Reporting Tool

Congress established the Health Care Industry Cybersecurity Task Force (the “Task Force”) in the Cybersecurity Act of 2015 (the “Act”) to address the challenges the health care industry faces when securing and protecting itself against cybersecurity incidents.  While all health care delivery organizations have a responsibility to secure their systems and patient data, many organizations face significant resource constraints, which hinders their ability to do so.  As a result, the public has seen an increase in ransomware attacks and large privacy breaches, which inevitably affects patient care.

The Task Force’s Findings and Recommendations:

Over the past year, the Task Force, comprised of a diverse group of public and private industry representatives, convened to discuss the urgent challenge of cyber attacks targeting health care organizations.  The Task Force’s discussions resulted in the development of six imperatives that should be achieved to increase security within the health care industry.  These imperatives were recently published in the June 2017 Report on Improving Health Care Industry Cybersecurity (the “Report”).

Each imperative includes a set of recommendations and associated action items for implementing the recommendation, which target the federal government, regulatory and legislative entities, health care industry stakeholders and public-private partnerships.  Below is a high-level summary of the six imperatives:

  1. Define and streamline leadership, governance, and expectations for health care industry cybersecurity.
    1. The Task Force found that many different programs and agencies within and outside of the U.S. Department of Health and Human Services (“HHS”) are responsible for health care industry cybersecurity, but there is a need for one person who is responsible for coordinating such activities.
      Because there are multiple frameworks for addressing cyber risk, each organization tends to use a unique language and framework for determining risk.
    2. The Task Force recommends the adoption of the National Institute of Standards and Technology (“NIST”) Cybersecurity Framework to standardize risk assessment and definitions.
    3. While effective cybersecurity requires leadership, not every organization is able to find, hire and retain cybersecurity expertise.  Therefore, the Task Force recommends that industry establish scalable best practices for governance of cybersecurity that could work for all organizations, regardless of size or provider type.
  2. Increase the security and resilience of medical devices and health IT.
    1. The Task Force noted that many providers have outdated operating systems, medical devices, and electronic health record (“EHR”) applications, many of which have security weaknesses because they do not have ongoing support from the hardware and software vendors that provided the legacy solutions. The Task Force provided a number of recommendations, including:
      1. Heath care delivery organizations should (a) inventory their clinical environments and document unsupported operating systems, devices and EHR systems; and (b) replace or update systems with supported alternatives to the extent possible;
      2. Health care sector accreditation organizations should consider incentives and guidelines for reporting and/or use of unsupported systems; and
      3. Government and industry should develop incentives to phase-out legacy and unsecure health care technologies.
    2. The Task Force recommends the use of two-factor authentication in situations where a health care provider is accessing an EHR outside the clinical setting (e.g., at home).
    3. There is a need for a Medical Computer Emergency Readiness Team (“MedCERT”) to coordinate medical device-specific responses to cybersecurity incidents and vulnerability disclosures.
  3. Develop the health care workforce capacity necessary to prioritize and ensure cybersecurity awareness and technical capabilities.
    1. To promote accountability and responsibility for cybersecurity, the Task Force notes the importance of identifying a cybersecurity leader in each organization (typically the Chief Information Security Officer (“CISO”)).  For smaller organizations, the Task Force acknowledged that a shared or third-party CISO may be more practical as they may lack the resources to have a CISO dedicated solely to the organization.
    2. Nationwide, there is a deficit of cybersecurity talent across all industries.  Many small, medium, and rural health care organizations have few qualified, dedicated security resources available.  Moreover, it is difficult to ensure workforce competencies due to the number of certification programs that are not all tailored to the health care environment.  The Task Force notes the immediate need for a method for certifying higher education programs in cybersecurity, particularly focusing on health care and patient safety.
    3. Small and medium-sized health care providers continue to maintain local servers and databases, which tend to be unsecure.  The Task Force recommends that such providers evaluate options to migrate patient records and outdated systems to secure environments, such as cloud service providers.
  4. Increase health care industry readiness through improved cybersecurity awareness and education.
    1. The Task Force recognizes the importance of an educated workforce and an informed public.  To achieve this, trade and professional associations should develop an education campaign with materials for CISOs and security leaders to better communicate with executive level leadership and Boards of Directors about the value of cybersecurity initiatives and funding.
    2. Health care organizations should participate in National Cybersecurity Awareness Month events in their area and become partners of the National Cybersecurity Awareness Campaign.
    3. There is currently a lack of shared awareness of cybersecurity risks and best practices among health care systems.  The health care sector should work with government and industry partners to develop an outreach and engagement campaign to increase health care cybersecurity awareness and literacy among health care providers, patients, and IT professionals.
  5. Identify mechanisms to protect research and development efforts and intellectual property from attacks or exposure.
    1. The health care sector is consistently one of the biggest investors in R&D across the U.S.  This significant investment in R&D also creates an increasingly lucrative target for intellectual property and trade secret theft.  The Task Force outlines recommendations to better secure R&D and intellectual property.
    2. The Task Force recommends the development of guidance to evaluate the potential economic impact, reputational damage, loss of intellectual property, and other cybersecurity risks for health care R&D.  The lack of clear and consistent guidance results in industry and academia undervaluing the risk to the health care industry.  Creating this evaluation will help organizations to better value their data assets when evaluating and applying security resources.
    3. Big data in the health care industry presents a unique set of challenges due to the size, valuable insights, and the volume of patient data handled by these systems.  Entities that manage big data solutions should ensure that a detailed risk assessment is performed at frequent intervals and should be careful when determining what data is collected, retained, or deleted.
  6. Improve information sharing of industry threats, weaknesses, and mitigations.
    1. The Task Force discovered diverse information needs among the large number of stakeholders involved in health care delivery.  Data-sharing approaches are often successful for organizations that already have the resources, personnel, and infrastructure to analyze large volumes of technical information. However, the small or medium-sized organizations can rarely leverage or take advantage of the constant stream of information.  Moreover, there is no single entity within the health care industry that is currently responsible for providing a comprehensive information sharing solution to the entire industry.
    2. Understanding the large quantity of information sharing data is overwhelming for small and medium-sized organizations.  Information and guidance needs to be streamlined for quick and efficient consumption by all providers.
    3. The Task Force found that many organizations have incident response plans in place, but very few review their plans on a regular basis.  Incident response plans that are not regularly reviewed or tested put the health care industry at risk.  Industry should implement cybersecurity incident response plans, which are reviewed and tested annually.

According to the Task Force, once implemented, the recommendations will help to increase awareness, manage threats, reduce risks and vulnerabilities, and implement protections against cyber attacks not currently present across a majority of the health care industry.

HHS’s Revised HIPAA Breach Reporting Tool:

Following up on the Task Force’s recommendation to provide health care officials with the knowledge and tools to manage cybersecurity threats, on July 25, 2017, the HHS Office for Civil Rights (“OCR”) launched a revised web tool, the HIPAA Breach Reporting Tool (“HBRT”).  The HBRT helps individuals identify recent breaches of health information, and to learn how such breaches should be investigated and properly resolved.

New features of the HBRT include:

  • Enhanced functionality that highlights breaches currently under investigation and reported within the last 24 months;
  • New archive that includes all older breaches and information about how breaches were resolved;
  • Improved navigation to additional breach information; and
  • Tips for consumers.
© 2017 Proskauer Rose LLP.

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About this Author

Associate

Elizabeth (Betsy) Rosen is an associate in the Health Care Department. Her practice focuses on representing health care clients, including hospitals, hospital systems, academic medical centers, physician organizations and other care entities. Betsy provides legal advice on a wide range of regulatory, transactional and corporate matters, including Medicare/Medicaid reimbursement, fraud and abuse compliance, managed care contracting, HIPAA and data privacy, and general corporate and business planning.

In addition, Betsy maintains an active pro bono practice, which includes...

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