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TIL - HIPAA doesn't protect data from being shared between organizations without consent
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this post was submitted on 21 Sep 2024
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Having permission to access to the HIPAA-protected dataset is only the first hurdle. You also need a medically valid or claim processing reason to look at individual patient records within that dataset. People have gotten into trouble by not respecting this. Doctors and other providers are not going to just poke around in the data for fun. Too little to gain for too much risk.
HIPAA is far from perfect, but it does do a decent job of protecting data at rest and in transit. If a bad actor like a hacker manages to get a copy of it, the sensitive stuff will be encrypted.
We handle HIPAA data at my job, and we all take it very seriously. There's annual training required, and a reporting process for violations. Nobody is looking at anything unless they really need to.
Large corporate health insurance providers are another problem. They of course do have access to it, and I am sure they abuse the privilege for data mining and scheming on claims denial strategies and so on. But that's a political and enforcement issue not an issue with HIPAA itself. They are violating HIPAA and getting away with it because they are a powerful lobby.
You know doctors offices are still one of the main users of facsimile transmission, right?
Actually I do know that. Pharmacies, too. You do know they are not FAXing giant datasets with millions of patients in them, right?
I'm not disagreeing with you, but the fax loophole does need to be closed.
You're right to point out the problem. Using a rhetorical tone was a bit sarcastic / condescending, so I mirrored it.
I think it's a question of perspective. Your doctor faxing something to a pharmacy or specialist is archaic at this point, and I agree it's not great. If they are using FOIP and not POTS, one would hope it's encrypted with TLS or something (if it's not, it's possibly a HIPAA violation if there's PHI in the FAX). But the blast radius is pretty small.
I suppose if a hacker compromised a hospital system's FOIP they could harvest a lot of medical records that way. But at that point, they are already in and they'd likely be more interested in fatter & juicier targets on the network. Bigger datasets with less effort (versus pulling from a trickle of FAXes going in and out).
Bottom line: yes, FAX is dumb, and it's a problem but it's very small compared to other things.
Point of fact, I'm not bobs_monkey, the originator of the rhetorical tone. Fax in healthcare continues to survive well past its prime because there is an inherent loophole: analog data transfer is functionally unsuited to encryption. This allows fax to be operated at a "best effort" level of security. There are handling protocols that are meant to keep traditional fax transmissions as private as possible, but these are layer 8 processes with limited enforceability. Beyond that, traditional fax represents a pathway around requirements on encryption while still meeting HIPAA compliance standards.
FOIP is an improvement, but it still allows for interoperability with a traditional fax machine connected to a POTS line in some GP's office that they're unwilling to part with. That means the FOIP user can only be confident of the transmission being secure on their side. I can't speak to the overall adaptation of FOIP in hospital systems, but I do know that there are non-isolated instances of hospitals still relying on traditional fax as opposed to adopting a cloud-fax solution. Hell, there are still major hospitals using SL-100s as their primary phone switches.
I don't even want to get into codec mismatches, because that falls out of scope when it comes to a privacy discussion.
Long story short, achieving HIPAA compliance is a low bar with regards to fax, and if that were to change I believe we'd see fax disappear (finally!) shortly thereafter.
From what I understand from the video and the regulation definition under Health Care Operations there are many ways for the provider to share the data without consent (page 2: https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/coveredentities/sharingfortpo.pdf).
Is that the first hurdle you were mentioning? I'm just trying to understand where is the restriction of the second hurdle if in 164.506 it says an entity can use the data:
Trying to understand the distinction add have another TIL moment, not aeguing against the comment
I mean to a degree this makes sense. It might very much be medically required to share such data.
How to, for example, prosecute a doctor for quackery if you cannot get access to the cases they worked on? So for oversight, someone overseeing it needs to be able to know drtaiks about the cases, too.
Hypothetically, they can ask for consent from patients, with some form that allows investigative agencies to access contact information of patients for such cases. I think there are other options other than sending it without consent and even the knowledge of the patients.
I guess personally I'd even be fine with not being asked, though now that you mention it, I'd like to at least know.
But then again, to some extend that's how it works here. My insurance knows about everything, but I need to allow doctors to access or modify my file, and then only portions of it. Like my general doctor can do a lot of stuff, but obviously my dentist can only do dental and radiology stuff.