Several provisions of the Health Insurance Portability and Accountability Act of 1996, or HIPAA, were intended to encourage electronic data interchange (EDI) and safeguard the security, privacy, and confidentiality of patient health information In the context of this act, security is the means by which confidentiality and privacy are insured. Confidentially defines how patient data can be protected from inappropriate access, while privacy is concerned with who should have access to the patient data. This article explores how the policies stipulated by HIPAA are shaping the practice of medicine and will likely affect your practice in the future.
HIPAA Security vs Innovation
If you're a typical small-practice physician, odds are that you view HIPAA as simply another federally mandated cost of practicing medicine, regardless of the intended outcome of the act. This position is understandable, given the cost of mandated training for you and your office staff. Furthermore, if your practice is computerized, then you'll need to spend even more money on software upgrades and possibly additional training from the vendor.
HIPAA rules and regulations are complex, in part because much of compliance is open to interpretation. For example, security issues, which are predominantly in the domain of software and hardware vendors, are based on “risk assessment,” not specific technology standards. The act doesn't stipulate specific technologies or endorse nationally recognized procedures, but leaves it up to the physician practice or medical enterprise to ensure that patient health data are secure. (HIPAA's security standards take effect on April 20, 2005, for all “covered entities” except small health plans). However, because HIPAA enforcement is complaint-driven – there are no “HIPAA Police” checking to see that your practice meets the law's requirements – differences in interpretation of the act are likely to end up in a courtroom at some point. For this reason, some experts recommend assessment of HIPAA compliance by outside counsel.
Most physicians are understandably concerned with the immediate compliance issues surrounding HIPAA and privacy and confidentiality of patient data. Even though the security standards were designed to be “technology-neutral,” the vagaries of these requirements are having a direct impact on medicine beyond the acute phase of compliance, especially in the introduction of new technologies in the clinical arena. New technologies, from wireless to tablet PCs, bring with them added functionality, potential workflow enhancements, and efficiencies – as well as new HIPAA security compliance issues.
Consider, for example, the effect of HIPAA's privacy rules on a physician contemplating the purchase of a Palm Pilot or other PDA. Even late adopters have probably observed the benefit of PDAs. Need to share patient data? Just beam it across the infrared link from one PDA to the next. Need to review patient lab data? Just touch the screen and the data are only a second away.
But it isn't that simple once HIPAA enters into the picture. Now a PDA carrying patient data is a compliance concern, as HIPAA's privacy rule applies to all mediums of a patient's protected health information, whether it's print, verbal, or electronic. Does your PDA have a login and auto logout feature? If not, then anyone could take your PDA and look up patient data. Consider the liability issues if you forgot your PDA at a coffee shop and someone picked it up and scanned through your list of patients. But with a login screen, one of the major benefits of a PDA – instant access to data – is lost.
If you use one of the wireless PDAs, such as the BlackBerry, then there are additional HIPAA-related issues: Does your PDA support the encryption of email and patient data it sends over the Internet? Is the encryption enabled? Is the level of encryption good enough for HIPAA?
Perhaps you've been considering adding a wireless (WiFi) LAN to your clinic or practice. You may have good reason to; wireless will allow you to carry a laptop into examining rooms for decision support and not have to worry about Ethernet cords. But considering HIPAA, is your WiFi system secure? Is the data encryption good enough? If not, will you have to buy new PCs and PDAs, or simply upgrade the operating systems? Do you need to hire a consultant? Maybe it's easier to simply string cables to each office and forget about the laptop this year. Or maybe it would be better to hold off on the computer-assisted decision support project altogether.
Paradoxically, although proponents of HIPAA once thought that it would enhance the move toward the electronic medical record (EMR), I believe that it is having the opposite effect. Because of the uncertainty surrounding HIPAA compliance and whether the legal system will be swamped with cases alleging violations of privacy, it's simply safer for small practices to stay with paper charts, and let the big medical practices deal with the inevitable lawsuits.
This brings up another cost issue: Does your insurance cover a patient suit over HIPAA? If so, how inclusive is the insurance? For example, let's say your practice regularly sends digital audio files overseas for transcription. You send the audio files and receive text documents a day later. Do you know how the patient data are handled at the transcription service? If a transcriptionist overseas decides to protest his or her low wages by posting a transcription of your patient's clinic visit openly on the Web, are you liable? Will your insurer pay? This example isn't as far-fetched as it might seem. In October 2003, a disgruntled Pakistani transcriber threatened the University of California-San Francisco over back pay.She threatened to post patients' confidential files on the Internet unless she was paid more money. To show that she was serious, she sent UCSF an unencrypted email with a patient record attached.