Michigan Cancer Consortium Hacked, Not a HIPAA Violation?

Pablo Valerio, International Business & IT Consultant | 7/17/2013 | 11 comments

Pablo Valerio
Last March, I wrote about a significant change in the rules for Electronic Health Records and HIPAA. Basically, the administration released a new set of rules extending responsibility to protect patient's medical records and personal information to all entities holding those records or part of them. This month, the state of Michigan is out to test those rules after a breach in the Michigan Cancer Consortium.

Hackers recently gained access to a private server that hosts the consortium's website. The hackers were able to access thousands of records of individuals that had screening tests, including the tests' results, names, addresses, Social Security numbers, telephone numbers, birth dates, and other personal data.

HIPAA rules establish that any data breach should be reported immediately to the persons whose records could have been accessed, pay substantial fines, and invest in better security. If another breach occurs, the provider or entity involved could face more serious consequences.

But the State of Michigan claimed that the screening test results stored by the Consortium are not medical records and the MCC was not a "Covered Entity" under HIPAA rules. They acknowledged a data breach, but not of Electronic Health Records. As of today the Michigan Cancer Consortium, nor their hosting providers, have placed a public notice of the breach on their websites. The only thing they did -- through a letter -- was to advise patients to place a fraud alert with the three major credit bureaus, to reduce the possibility of identity theft.

A major part of the argument is that the site in question was simply used to transmit information to local screening agencies and therefore wasn't part of a covered entity. It also stated that the information originated with the state's Cancer and Control division, which is not covered by HIPAA.

A Michigan Department of Community Health spokesperson said the compromised data:

...were not medical records and therefore, no notification under HIPAA was sent to individuals. However, because the reports contained Social Security numbers, the Identity Theft Protection Act did apply. MDCH therefore contacted individuals about the breach along with steps that could be taken to protect from the potential for identity theft.

Cancer screening test results aren't medical records? Maybe a lawyer can argue that, but that sounds like medical information to me. If you look at their website, it is full of medical information and health-related topics. Even if most of those test results are negative, they involve a medical procedure on individuals, not just a phone survey.

Is it possible for the State of Michigan to pull this off? Apparently, yes, because at the time of the writing of this article, no attempt has been made to penalize the state of Michigan for its determination or lack of notification. HIPAA rules, although inconvenient to state governments and private institutions, are there to protect people against this particular type of event, having their medical information exposed. Letting the MCC and the state government get away with this "legal trick" could pose a serious blow to the privacy of patients and destroy public confidence in their institutions.

As a CIO, it might be tempting to follow Michigan's example and try to "re-classify" your breach. And in the short term, you might be able to get away with it. But showing a long-term disregard for your patient's privacy is likely to hurt your reputation, and when regulatory agencies decide enough is enough, you're likely to be in more trouble. As they say on TV, "Don't try this at home. It is too dangerous."

What do you think? Should this breach fall under HIPAA? Should Michigan admit its mistake before it is too late? Or is this just a clever way to protect your organization the next time you have a breach? Comment below.

View Comments: Newest First | Oldest First | Threaded View
Page 1 / 2   >   >>
Kerstin Carson   Michigan Cancer Consortium Hacked, Not a HIPAA Violation?   8/21/2013 6:24:06 AM
Michigan Cancer Consortium Hacked, Not a HIPAA Violation?
So much to say on this topic!

Considering the fact that Michigan passed up the initial opportunity to admit that they made a mistake, I'd say it's already too late. How much better is one's reputation when they admit to being guilty of something when they can no longer deny it versus taking accountability for their mistake from the beginning?

Hopefully those agencies who might be at risk of falling vulnerable to the same type of info leak can learn from Michigan by protecting their own patient's information a bit better, but be willing to hold themselves accountable in the right way should that information be compromised like Michigan's info was.

And, while I understand all too well that an illness is an illness, there is something to say about the fact that the type of patient info that was accessed did not leak info on people with communicable/transmissible diseases.
C FOX FREEMAN   Michigan Cancer Consortium Hacked, Not a HIPAA Violation?   7/18/2013 2:32:00 PM
Re: The OCR
Please, I do not want to get picky but what the government's acronym, OCR, stands for is the Office of Civil Rights which is designated by HHS the department of Health and Human Services as the chief enforcer regarding its HIPAA rules. Yep, go figure--this is not intuitive, I agree.  But HHS states that  "[f]ederal civil rights laws and the Health Insurance Portability and the Health Insurance Porability and Accountability Act (HIPAA) Privacy Rule, together protect the your fundamental rights of nondiscrimination and privacy.

Corporate data security risk assessments are a fundamental part of keeping compliant with HIPAA and HITECH regulations – not to mention meeting Stage 1,and going into 2 and 3 meaningful use – which has been problematic for many healthcare providers and its business associates, especially since there is no bright line standard set by the agency to follow.  One can only hope that when an OCR singles you out for an audit that you can provide documention of complaince and make sure you mitigate any findings that you have.


And  do not take the chance of being held liable for only civil but criminal penalties under the individual State's privcacy laws.
Pablo Valerio   Michigan Cancer Consortium Hacked, Not a HIPAA Violation?   7/17/2013 4:20:52 PM
Re: Just say It
@Progman, I did not read your question correctly the first time. I don't know if the Office of Consumer Rights (OCR) publishes those numbers, but some heavy fines have been levied, including a $4.3 penalty to Cignet Health (MD) and a $100,000 to a 2 doctor practice in the Phoenix area. 

Some other fines are highlighted in this article:

User Ranking: Blogger
ProgMan   Michigan Cancer Consortium Hacked, Not a HIPAA Violation?   7/17/2013 4:09:22 PM
Re: Just say It
I apologize Pablo, I probably made my question unclear.  I was wondering how many fines are actually being leveled against organizations for HIPAA violations.  I work with a lot of hospitals and have yet to hear of anyone getting fined.  I'm just wondering how many organizations in the course of a year are actually getting fined?  Certainly almost every one of them would be trying to fight it on some basis or another.  So is MCC one of many that will try to claim it's not a protected entity or are we treading on relatively new ground?
Pablo Valerio   Michigan Cancer Consortium Hacked, Not a HIPAA Violation?   7/17/2013 4:03:42 PM
Re: Just say It
@Progman, section 160.404 establishes penalties up to $1.5 million per year:

(1) for violations in which it is established that the covered entity did not know and, by exercising reasonable diligence, would not have known that the covered entity violated a provision, an amount not less than $100 or more than $50,000 for each violation; (2) for a violation in which it is established that the violation was due to reasonable cause and not to willful neglect, an amount not less than $1000 or more than $50,000 for each violation; (3) for a violation in which it is established that the violation was due to willful neglect and was timely corrected, an amount not less than $10,000 or more than $50,000 for each violation; and (4) for a violation in which it is established that the violation was due to willful neglect and was not timely corrected, an amount not less than $50,000 for each violation; except that a penalty for violations of the same requirement or prohibition under any of these categories may not exceed $1,500,000 in a calendar year.

I don't think the penalties are extremely high considering the implications of the data breach. I do think they want to stay out of HIPAA because it makes expensive to them to secure data properly and follow all the requirements
User Ranking: Blogger
ProgMan   Michigan Cancer Consortium Hacked, Not a HIPAA Violation?   7/17/2013 3:48:53 PM
Re: Just say It
Pablo, do you have any idea how prolific HIPAA fines are?  I have no idea, but am in a position where I need to adhere to the ever strengthening guidelines.  I think it's outrageous that MCC is trying to wiggle out of it by claiming not to be a covered entity, but am wondering how many fines are actually being levied out in the first place right now?  
Pablo Valerio   Michigan Cancer Consortium Hacked, Not a HIPAA Violation?   7/17/2013 1:42:24 PM
Re: Just say It
"For example, i can't claim that because i'm using your data for customer loyalty records, it isn't covered under consumer protection if i give out your credit card."

That's a great analogy. I have the feeling that many governments and public agencies are looking for ways to "twist" the "letter of the law", not interested in the real spirit of it, as we can see every day on privacy violations of every kind.
User Ranking: Blogger
David Wagner   Michigan Cancer Consortium Hacked, Not a HIPAA Violation?   7/17/2013 1:26:11 PM
Re: Just say It
Honestly, I don't see how this doesn't apply. What they seem to be relying on is that it is "public health" data as opposed to medical record because it is being used that way on the server. but it seems to me that just because I'm using data in a different way it doesn't re-classify the data. For example, i can't claim that because i'm using your data for customer loyalty records, it isn't covere dunder consumer protection if i give out your credit card.
Pedro Gonzales   Michigan Cancer Consortium Hacked, Not a HIPAA Violation?   7/17/2013 12:59:35 PM
lets hope this the first and last time
I think it should have been protected by HIPAA and that Michigan should have added to their mistakes.  The data that was acquired included social security numbers and some medical procedures. I think in their case it is much easier to classifyi t as something is not rather than  accept it was a HIPAA violation.  It seems that organization are smart enought to find any loophole they want.
Pablo Valerio   Michigan Cancer Consortium Hacked, Not a HIPAA Violation?   7/17/2013 12:57:30 PM
Re: Just say It
@Dave, I don't know if the MCC asked for legal interpretation. It looks like they just  made the claim that those are not Personal Health Information (PHI) and hope that no federal agency challenges that.

The information was password protected but not encrypted, and that is a HIPAA violation under section 164:

§164.306(e)(2)(ii): Implement a mechanism to encrypt electronic protected health information whenever deemed appropriate.

Protecting ePHI at rest and in transit means encrypting not only data collected or processed, but also data stored or archived as backups.

HIPAA Privacy Rule includes any records of PHI with demographic information related to "the individual's past, present or future physical or mental health or condition," the MDCH's cancer screening test results, including dates and patients' personal data contain infomation under that definition.

I'd like to see a lawyer's opnion on this!

User Ranking: Blogger
Page 1 / 2   >   >>

The blogs and comments posted on EnterpriseEfficiency.com do not reflect the views of TechWeb, EnterpriseEfficiency.com, or its sponsors. EnterpriseEfficiency.com, TechWeb, and its sponsors do not assume responsibility for any comments, claims, or opinions made by authors and bloggers. They are no substitute for your own research and should not be relied upon for trading or any other purpose.

More Blogs from Pablo Valerio
Pablo Valerio   10/3/2013   35 comments
One of the factors keeping doctors from getting a complete picture of a patient's health condition is lack of patient cooperation. Patients are often advised by doctors to regularly record ...
Pablo Valerio   9/25/2013   21 comments
It's nearly impossible to do business anymore without access to huge amounts of data, whenever and wherever you want it. Yet cellular data roaming charges are pricey, WiFi spectrum is ...
Pablo Valerio   9/24/2013   20 comments
Aided by big-data and cloud computing, "personalized medicine" is enabling doctors and researchers to evaluate the potential of existing drugs in different individuals and make better ...
Pablo Valerio   8/28/2013   29 comments
A few weeks ago, Neelie Kroes, vice president of the European Union for the Digital Agenda, warned that American cloud companies could lose $35 billion because of the NSA spying scandal ...
Pablo Valerio   8/21/2013   39 comments
A new study by researchers from the MIT Sloan School of Management, the Hebrew University of Jerusalem, and NYU Stern School of Business shows that many people like or give positive ...
Latest Archived Broadcast
We talk with Bernard Golden about accelerating application delivery in the cloud.
On-demand Video with Chat
Register for this video discussion to learn how tablets can provide true business usability and productivity.
E2 IT Migration Zones
IT Migration Zone - UK
Why PowerShell Is Important
Reduce the Windows 8 Footprint for VDI
Rethinking Storage Management
IT Migration Zone - FR
SQL Server : 240 To de mémoire flash pour votre data warehouse
Quand Office vient booster les revenus Cloud et Android de Microsoft
Windows Phone : Nokia veut davantage d'applications (et les utilisateurs aussi)
IT Migration Zone - DE
Cloud Computing: Warum Unternehmen trotz NSA auf die „private“ Wolke setzen sollten
Cloud Computing bleibt Wachstumsmarkt – Windows Azure ist Vorreiter
Like Us on Facebook
Twitter Feed
Enterprise Efficiency Twitter Feed
Site Moderators Wanted
Enterprise Efficiency is looking for engaged readers to moderate the message boards on this site. Engage in high-IQ conversations with IT industry leaders; earn kudos and perks. Interested? E-mail:
[email protected]
Dell's Efficiency Modeling Tool
The major problem facing the CIO is how to measure the effectiveness of the IT department. Learn how Dell’s Efficiency Modeling Tool gives the CIO two clear, powerful numbers: Efficiency Quotient and Impact Quotient. These numbers can be transforma¬tive not only to the department, but to the entire enterprise.

Read the full report
The State of Enterprise Efficiency in the Virtual Era: Virtualization – Smart Approaches to Maximize Gains
Virtualization is a presence in nearly all enterprise data centers. But not all companies are using it to its best effect. Learn the common characteristics of success, what barriers companies face, and how to get the most from your efforts.

Read the full report
Informed CIO: Dollars & Sense: Virtual Desktop Infrastructure
Cut through the VDI hype and get the full picture -- including ROI and the impact on your Data Center -- to make an informed decision about your virtual desktop infrastructure deployments.

Read the full report
A Video Case Study – Translational Genomics Research Institute
e2 Video

On the Case
TGen IT: Where We're Going Next

7|11|12   |   08:12   |   10 comments

Now that TGen has broken new ground in genomic research by using Dell's storage, cloud, and high-performance computing solutions, the company discusses what will come next for it and for personalized medicine.
On the Case
Better Care Through Better Communications

6|6|12   |   02:24   |   11 comments

The achievements of the TGen/Dell project could improve how all people receive healthcare, because they are creating ways to improve end-to-end communication of medical data.
On the Case
TGen IT: Where We Are Now

5|15|12   |   06:58   |   6 comments

TGen is breaking new ground in genomic research by using Dell's storage, cloud, and high-performance computing solutions.
On the Case
TGen IT: Where We Were

4|27|12   |   06:45   |   10 comments

The Translational Genomics Research Institute wanted to save lives, but its efforts were hobbled by immense computing challenges related to collecting, processing, sharing, and storing enormous amounts of data.
On the Case
1,200% Faster

4|18|12   |   02:27   |   12 comments

Through their partnership, Dell and TGen have increased the speed of TGen’s medical research by 1,200 percent.
On the Case
IT May Improve Children's Chances of Survival

4|17|12   |   02:12   |   8 comments

IT is helping medical researchers reach breakthroughs in a way and pace never seen before.
On the Case
Medical Advances in the Cloud

4|10|12   |   1:25   |   5 comments

TGen and Dell are pushing the boundaries of computing, and harnessing the power of the cloud to improve healthcare.
On the Case
TGen: Living the Mission

4|9|12   |   2:25   |   3 comments

TGen's CIO puts the organizational mission at the heart of everything the IT staff does.
On the Case
TGen Speeding Up Biomedical Research to Save More Lives

4|5|12   |   1:59   |   6 comments

The Translational Genomics Research Institute is revamping its computing to improve speed, storage, and collaboration – and, most importantly, to save lives.
On the Case
Computing Power Helping to Save Children's Lives

3|28|12   |   2:13   |   3 comments

The Translational Genomics Institute’s partnership with Dell is enabling them to treat kids with neuroblastoma more quickly and save more lives.
Tom Nolle
The Big Reason to Use Office

3|18|14   |   02:24   |   46 comments

Office and personal productivity tools come in a first-class and coach flavor set, but what makes the difference is primarily little things that most users won't encounter. What's the big issue in using something other than Office, and can you get around it?
E2 Editors
SPONSORED: Mobile Security — A Use Case

3|4|14   |   04:27   |   16 comments

New mobile security solutions can accommodate a wide array of needs, including those of a complex university environment.
Tom Nolle
Killing Net Neutrality Might Save You Money

1|16|14   |   2:13   |   16 comments

The DC Court of Appeals voided most of the Neutrality Order, and whatever it might mean for the Internet overall, it might mean better and cheaper Internet VPNs for businesses.
Tom Nolle
The Internet of Everythinguseful

1|10|14   |   2:18   |   19 comments

We really don't want an "Internet of Everything" but even building an Internet of Everythinguseful means setting some ground rules to insure there's value in the process and that costs and risks are minimized.
Tom Nolle
Maturing Google Chrome

12|30|13   |   2.18   |   25 comments

Google's Chrome OS has a lot of potential value and a lot of recent press, but it still needs something to make it more than a thin client. It needs cloud integration, it needs extended APIs via web services, and it needs to suck it up and support a hard drive.
Sara Peters
No More Cookie-Cutter IT

12|23|13   |   03.58   |   21 comments

Creating the right combination of technology, people, and processes for your IT organization is a lot like baking Christmas cookies.
Sara Peters
Smart Wigs Not a Smart Idea

12|5|13   |   3:01   |   46 comments

Sony is seeking a patent for wigs that contain computing devices.
Tom Nolle
Cloud in the Wild

12|4|13   |   02:23   |   15 comments

On a recent African trip I saw examples of the value of the cloud in developing nations, for educational and community development programs. We could build on this, but not only in developing economies, because these same programs are often under-supported even in first-world countries.
E2 Editors
SPONSORED: Is Malware Evading Your IPS?

11|18|13   |   03:16   |   4 comments

Intrusion prevention software is supposed to detect and block malware intrusions, but clever malware authors can evade your IPS in these five main ways.
Sara Peters
Where Have All the Mentors Gone?

9|27|13   |   3:15   |   38 comments

A good professional mentor can change your life for the better... but where do you find one?
Tom Nolle
SDN Wars & You Could Win

9|17|13   |   2:10   |   5 comments

VMware's debate with Cisco on SDN might finally create a fusion between an SDN view that's all about software and another that's all about network equipment. That would be good for every enterprise considering the cloud and SDN.
Ivan Schneider
The Future of the Smart Watch

9|12|13   |   3:19   |   39 comments

Wearing a bulky, oversized watch is good training for the next phase in wristwatches: the Internet-enabled, connected watch. Why the smartphone-tethered connected watch makes sense, plus Ivan demos an entirely new concept for the "smart watch."
Tom Nolle
Cutting Your Cloud Storage Costs

9|4|13   |   2:06   |   3 comments

Cloud storage costs are determined primarily by the rate at which files are changed and the possibility of concurrent access/update. If you can structure your storage use to optimize these factors you can cut costs, perhaps to zero.
Sara Peters
Do CIOs Need an IT Background?

8|29|13   |   2:11   |   23 comments

Most of the CIOs interviewed in the How to Become a CIO series did not start their careers as IT professionals. So is an IT background essential?
Ivan Schneider
The Internet Loves Birthdays

8|27|13   |   3:25   |   69 comments

The Internet has evolved into a machine for drumming up a chorus of "Happy Birthday" messages, from family, friends, friends of friends who you added on Facebook, random people that you circled on G+, and increasingly, automated bots. Enough already.