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.

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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:

http://www.healthcareitnews.com/news/lawyer-ignore-hipaa-your-own-risk
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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
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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.
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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!

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