What Closing the HIPAA Gaps Means for the Future of Healthcare Privacy
By Kirk J Nahra, Partner and Chair of Privacy and Data Security Practice at Wiley Rein, LLP.
By now, most people have felt the effects of the HIPAA Privacy Rule (from the Health Insurance Portability and Accountability Act). HIPAA has set the primary standard for the privacy of healthcare information in the United States since the rule went into effect in 2003. It’s an important rule that creates significant baseline privacy protections for healthcare information across the country.
Yet, from the beginning, important gaps have existed in HIPAA – the most significant involving its “scope.” The rule was driven by congressional decisions having little to do with privacy, but focused more on the portability of health insurance coverage and the transmission of standardized electronic transactions.
Because of the way the HIPAA law was crafted, the U.S. Department of Health and Human Services (HHS) could only write a privacy rule focused on HIPAA “covered entities” like healthcare providers and health insurers. This left certain segments of related industries that regularly use or create healthcare information—such as life insurers or workers compensation carriers— beyond the reach of the HIPAA rules. Therefore, the HIPAA has always had a limited scope that did not provide full protection for all medical privacy.
So why do we care about this now?
While the initial gaps in HIPAA were modest, in the past decade, we’ve seen a dramatic increase in the range of entities that create, use, and disclose healthcare information and an explosion in the creation of healthcare data that falls outside HIPAA.
For example, commercial websites like Web MD and patient support groups regularly gather and distribute healthcare information. We’ve also seen a significant expansion in mobile applications directed to healthcare data or offered in connection with health information. There’s a new range of “wearable” products that gather your health data. Virtually none of this information is covered by HIPAA.
At the same time, the growing popularity of Big Data is also spreading the potential impact from this unprotected healthcare data. A recent White House report found that Big Data analytics have the potential to eclipse longstanding civil rights protections in how personal information is used in many areas including healthcare. The report also stated that the privacy frameworks that currently cover healthcare information may not be well suited to address these developments. There is no indication that this explosion is slowing down.
We’ve reached (and passed) a tipping point on this issue, creating enormous concern over how the privacy interests of individuals are being protected (if at all) for this “non-HIPAA” healthcare data. So, what can be done to address this problem?
Debating the solutions
Healthcare leaders have called for broader controls to afford some level of privacy to all health information, regardless of its source. For example, FTC commissioner Julie Brill asks whether we should be “breaking down the legal silos to better protect that same health information when it is generated elsewhere.”
These risks also intersect with the goal of “patient engagement,” which has become an important theme of healthcare reform. There’s increased concern about how patients view this use of data, and whether there are meaningful ways for patients to understand how their data is being used. The complexity of the regulatory structure (where protections depend on sources of data rather than “kinds” of data), and the determining data sources (which is often difficult, if not impossible), has led to an increased call for broader but simplified regulation of healthcare data overall. This likely will call into question the lines that were drawn by the HIPAA statute, and easily could lead to a re-evaluation of the overall HIPAA framework.
Three options are being discussed on how to address non-HIPAA healthcare data:
- Establishing a specific set of principles applicable only to “non-HIPAA healthcare data” (with an obvious ambiguity about what “healthcare data” would mean)
- Developing a set of principles (through an amendment to the scope of HIPAA or otherwise) that would apply to all healthcare data
- Creating a broader general privacy law that would apply to all personal data (with or without a carve-out for data currently covered by the HIPAA rules).
It’s clear that the debate and policymaking “noise” on this issue will be ongoing and extensive. Affected groups will make proposals, regulators will opine, and legislative hearings will be held. Industry groups may develop guidelines or standards to forestall federal legislation. We’re a long way from any agreement on defining new rules, despite the growing consensus that something must be done.
Therefore, companies that create, gather, use, or disclose any kind of healthcare data should evaluate how this debate might affect them and how their behavior might need to change in the future. The challenge for your company is to understand these issues, think carefully and strategically about your role in the debate, and anticipate how they could affect your business going forward.