HIPAA regulations regarding data security for patients are hard for a layperson to understand, and are even difficult for administrators and technologists who work in the healthcare industry. This is especially true for smaller organizations, partly due to the complexity of the HIPAA law itself, and the HITECH regulations that followed it. Let’s try to clear up some of the misunderstanding around HIPAA and encryption, and clarify what you should do regarding data protection for patient data.
The first confusion about the protection of patient data is that encryption of this data is a strong recommendation, but that it is not a mandate. It is what is termed an “addressable” requirement. The word “addressable” has very specific meaning in the context of HIPAA. If implementing encryption of patient data is not feasible, a healthcare organization under HIPAA regulations, can implement equivalent protections. So, if your software vendor or IT department thinks that encryption is not feasible you have the option to implement other equivalent security controls to compensate for that. The reasons why you think it is not feasible must be documented in writing, and must be reasonable and valid.
Encryption is not a mandate under HIPAA law. And unless the law changes, it is probably not possible for HHS and its Office for Civil Rights (OCR) to make it mandatory.
But there is much more that you need to know. While HHS and OCR cannot mandate the encryption of patient data, they do have the ability to make it painful if you don’t. And that is exactly what they are doing. For example, if you claim that you can’t encrypt patient data, document your reasons, implement compensating controls, and THEN have a data breach, you are likely to be penalized for the lack of effectiveness of the compensating controls. Your data breach is clear evidence that your compensating controls were inadequate.
I like to call this a “Backdoor encryption requirement”. That is, there is probably nothing you can do in the way of compensating controls that are equivalent to encryption. But you won’t discover that until you have a data breach.
Lacking the ability to mandate encryption, HHS and OCR have taken to the strategy of increasing the penalties for lost patient data. I’ve heard recently from many organizations in the healthcare segment of increasing concern about the potential fines related to a data breach. This is driving a new interest in encryption and the related requirement to protect encryption keys.
This last point is crucial when implementing encryption for HIPAA compliance - your encryption strategy is only as good as your encryption key management strategy. Encryption keys are the secret that has to be protected. If you lose the encryption key, the cybercriminals have the ability to access patient data. Storing encryption keys in a file, in application code, or on mountable drives or USB storage will certainly fail a best practices review. Use a professional, certified key management solution in your encryption deployment to protect patient data.
If you are going to do encryption of patient data, get it right the first time! Use good key management practices.