HIPAA Security Trickle-down? Notifications State Sensitive Information Not Contained In Stolen Devices.
According to databreaches.net, two medical entities recently alerted patients of a data breach: Eastern Maine Medical Center (EMMC) and Nevro Corporation.
In the case of EMMC, an external hard drive went missing. For Nevro, a number of laptops were stolen during a break-in. Information contained in these devices was not protected with data encryption in either case, but then again, “sensitive information” was not stored on any of the devices involved.
While the lack of encryption seems reasonable at first glance, the truth is that a number of HIPAA / HITECH regulations were probably broken.
Eastern Maine Medical Center
In the case of EMMC, the data breach was triggered when a third-party vendor’s hard disk drive disappeared. Bangor Daily News reports that the “missing hard drive contains information on 660 of the patients who underwent cardiac ablation between Jan. 3, 2011 and Dec. 11, 2017.”
The missing drive was last seen on December 19. Reportedly, the storage device contained:
Patients’ names, dates of birth, dates of their care, medical record numbers, one-word descriptions of their medical condition and images of their ablation… [but NOT] Social Security numbers, addresses and financial information.
On the face of it, it looks like the data breach could be classified by most people as “small potatoes.”
Unlike EMMC, Nevro was responsible for its data breach. And yet, the company cannot be strongly faulted for the data mishap: it’s not as if the laptops were in an unsafe location (like an employee’s car). The laptops were at the company’s headquarters, which one assumes was reasonably secure against break-ins.
Per Nevro’s breach notification letter, “nearby business were also targeted” and laptops were stolen from them as well, so chances are that Nevro had comparable security in place. (Either that or most businesses in the area decided to dispense with security, a dubious assumption).
The company noted that all of the stolen laptops were password-protected “although not all were encrypted.” Yet, the silver-lining is that “limited categories of information” were stored on these devices and that none of them “contained, sensitive identifying information such as Social Security or other government-issued identification numbers or credit card or financial institution information.”
The “limited information” pertains to names, addresses, and other similar information listed by EMMC. Indeed, Nevro seemingly implies that it’s only sending affected patients because
applicable state law considers this type of information [limited information about your treatment relationship with Nevro] sufficient to warrant a notification.
Again, most people would look at this as small potatoes (especially when you take into consideration what Equifax admitted to last September. That was definitely not small potatoes; heck, it went well beyond the tuber family).
As pointed out in previous posts, such “not sensitive” information can still be used to carry out fraud and scams. Tech support scams, for example, are successful even though there is very little personal data involved. Can you imagine how much more convincing a phone scam would be if someone called a person about his or her cardiac ablation?
That being said, there is a remote possibility of it happening. In contrast, the malicious use of SSNs and other information generally considered to be “sensitive” is more than possible. So, the lack of what most people would deem “sensitive personal information” should come as something of a relief to patients.
Could Still Be a HIPAA Breach
It may not be, however, a relief for the two organizations. A cursory search on the internet seems to indicate that both fall under the purview of the Health Insurance Portability and Accountability Act (HIPAA). HIPAA has very strict definitions of what is and is not PHI (protected health information).
As this link shows names, physical addresses, telephone and fax numbers, email addresses, etc. are considered to be PHI if combined with certain information, such as what medical treatment one was receiving. So, technically, it looks like the two organizations have a full-blown medical data breach in their hands.
It goes without saying that the use of full disk encryption would have paid off wonderful dividends in both cases because HIPAA provides safe harbor if data is encrypted when lost or stolen. That not being the case, what will be the fallout?
HIPAA / HITECH data security compliance is administered and overseen by the Office of Civil Rights (OCR) of the Department of Health and Human Services. The OCR has not been shy in dispensing monetary penalties, sometimes in the millions of dollars.
And, as befitting such large sums, it often takes years to reach a decision on how to deal with HIPAA covered-entities that have suffered a data breach.
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