Why you should not sign everything put in front of you: HIPAA Business Associate Agreements

courtesy of backstage.com

The Health Insurance Portability and Accountability Act of 1996 and its subsequent amendments ("HIPAA") includes the contractual arrangements between Covered Entities and Business Associates, and now downstream Business Associates, or subcontractors (under the Health Information Technology for Economic and Clinical Health Act "HITECH").

This entry presumes the reader has a basic knowledge of HIPAA, but if not, please see the above link for HIPAA.

Today, we look at the evolving and complicated nature of Business Associate Agreements ("BAAs"). These are the agreements mandated by HIPAA, and now HITECH, although the recent amendments and the preamble make clear that the requirements of HIPAA and the HITECH Act apply to a Subcontractor regardless of whether the Business Associate fails to enter into a contract with the Subcontractor. This is very important below when we cover some of the complications.

First:
HIPAA requires certain provisions to be covered in BAAs. Often, the Covered Entity will put in additional provisions, usually around indemnity, audits, breach notification timelines, and data protection minimums not required by HIPAA, such as encryption.  These provisions are unduly burdensome, especially given the characteristics of most Business Associates - small operations. It is understandable why an entity would want to put these protections in place, but it may may stifle the ability to outsource and place a strain on relationships.

Second:
It is understandable why the government wants to reach further than Covered Entities and have direct oversight of Business Associates. Think about it, Dr. Jones on the neighborhood corner may not have the wherewithal to properly secure data or to respond to breaches. Or given that the new provisions provide for the State Attorneys General to bring civil actions on behalf of state residents for HIPAA violations, for damages or to enjoin further violations. I once had a privacy attorney argue with me via email (which cc'd numerous colleagues) that HIPAA as amended by HITECH absolutely did not provide for a private right of action. Well, duh - but given that the states can now do so on behalf of its citizens...it is practically the same thing. But I understand, in the law, one must be precise.

Third:
Large organizations that are now clearly defined as Business Associates, according to the guidance issued with the final rules, at first stated they would not sign BAAs. Remember above, where the new rules provide for liability whether a BAA is signed or not...?  Well, their refusal did not last long. See a discussion about Amazon Web Services here. What large providers who do not wish to be rolled under HIPAA have done, is placed administrative requirements on the Covered Entities or Business Associates which use their services, such as list all accounts for which they have patient data. Many organizations are unable to fulfill these requirements. So what is the solution - sign something they cannot fulfill or don't sign and HIPAA applies anyway. This is yet to be tested, but it is a popular conundrum.

Organizations should be careful about signing any old BAA placed in front of them. Watch your salespeople, too. They are likely presented individual BAAs when they show -  either the BAA does not apply or the employees are committing the company to a BAA without proper review. And this can be costly given the additional items that are in a BAA as discussed above.  And how can an organization signing tens or hundreds of BAAs possibly manage to push all the same provisions to downstream vendors? They conflict with each other - and Covered Entities need to understand that with the additions of clauses that are not required by HIPAA, they are setting their Business Associates up for failure.

Last, many small business owners that are Covered Entities do not understand HIPAA completely. Heck, neither do I. After a professional conference, Business Associates or potential Business Associates will be deluged with requests to sign BAAs. Sometimes, the exact same template is used, including with various clauses that include internal directions such as [choose one of the two clauses below]. It can be frustrating on all sides. Most individuals, however, are just trying to do the right thing. If a Covered Entity wants an organization to sign a BAA and the relationship does not exist, the organization can easily respond with a tight explanation. If still pushed, adding a line such as "This agreement only applies where the organization acts in the capacity of a Business Associate under HIPAA" will generally satisfy the needs of both sides. This is another untested, yet relatively popular strategy.

The conclusion here is that you should not sign everything put in front of you - or your employees. Educate all individuals to send the BAAs to a central office. Push back, or scale back, non-HIPAA provisions. It will be interesting to see how these natural conflicts play out in the next few years.

Hummingbirds and Platypuses: Terminology Matters

In the first grade, I was sent to second grade for math classes. I was five. I was close to the youngest person in my school for first grade (simply due to my birthday being in December), so many of my classmates were already a year older than I was, and second graders were two or more years older than that. One day, the teacher told us "No talking." So I whispered. My verbal logistics were well-rewarded with the only time-out I ever had in school. I explained that whispering is not talking, but she was having none of it. 

In a poorly worded segue, let's transition to a deposition. In 2010, an Ohio Supreme Court case contained a ten-page argument over the meaning of the word "photocopier" from a deposition of the head of IT of a county recorder's officer. You can watch a verbatim reenactment of the transcript here. It is well worth the time, for attorneys, IT, or laymen. Both sides seem slightly ridiculous, but also logical.

Second poor segue alert (but stay with me...it all comes together): That is a problem we have with technology and law. We use terms that when in question can have minute differences that matter. The word makes sense. The concept makes sense. People generally understand what the intent is with the law, but when trying to determine whether a specific technology or its use falls within or outside the law, it becomes quite complicated.

For example, let's play off the transcript above. If there is a rule that a document cannot be photocopied - we know it means, no copying of the document, right? Or does it? Does it mean no photostatic copies - or no digital scanning? or who knows, someone may have an old carbon copying machine lying around just waiting to be used to circumvent the new rule.

Words have meaning and technology is testing the ultimate limits of the words used in our current laws. Courts do their best to interpret law based on its intent, but that intent can usually only be present if the way in which something functions can be imagined (Constitutional wording aside - that is a whole 'nother argument). And sometimes, if the intent can be inferred - or is even explicit - the wording of the law/rule/regulation/guidance is so ambiguous that the courts can do nothing but decide against what seems to be fair to a layman.

This is where data protection and privacy seem to reside. Technology and its resulting misuse far outstrips the incremental changes in law. We're not even talking cigarette boats vs. paddle boats. We're talking hummingbirds vs. platypuses (platypi was incorrect). They exist on the same world and breathe the same air, but they probably do not play well together - seriously, a platypus could squash the hummingbird, but the hummingbird moves too fast for the platypus to catch. Hummingbirds might not even notice the platypus exists! Hummingbirds are stunning to observe and need to keep moving. Platypuses need to be protected and well-grounded. One can absolutely exist without the other, but both need to co-exist with humanity. (wow, this analogy really works all the way through for technology and privacy.)

(and five-year-olds who play with words just might become attorneys.)

InBloom: Seeded before its time

Yesterday, inBloom (non-profit education software company) announced its plans to wind down operations over the next few months due to objections by parents and legislators. Adults became concerned about putting in too much information into this database (400 fields), such as students' social security numbers, details about school withdrawals, and family relationships. This month, New York passed legislation prohibiting their department of education from providing data to aggregators (like InBloom).

In mid-November of last year, parents in New York petitioned for a restraining order against the state department of education preventing them from providing student data to inBloom. Parents cited that providing this information was a dramatic departure from the then current practice and seemed to be taking steps backwards in terms of privacy.

inBloom describes its mission and goals as:
"a set of shared technology services that includes a secure, multi-tenant data store and middleware for identity management and data integration . . .  designed to help School Districts and State Educational Agencies provide educators, parents, elementary and secondary school students with learning data from many sources and connect them to relevant instructional resources to support personalized learning through inBloom. The service also helps State Educational Agencies in evaluating federal- and state-supported education programs."

The goal was to provide  "districts and states as a utility for them to more easily synchronize and transfer data, including student personally identifiable information (PII), across the various learning applications they deploy to teachers, students, and families."

So now it ends. inBloom is Out. 

But let's think about this for a few moments...

Is the population of the United States seriously considering the privacy rights of its vulnerable citizens? What?? This turns my privacy meter on its head. Since when did we care what information we share as long as no one gets hurt. What harm can come from this type of data aggregation? It's not like inBloom was going to turn over its education records to the department of child services to show that certain students had certain educational challenges - or home challenges that interfered with education. Data would not be misused or misinterpreted, right? Or shared with watchdog groups or even governmental agents who would put a spin on the data that might adversely affect students, families, school districts, or state funding, right?

Good googli moo

Privacy: Don't let it go (our take on the ubiquitous song)

Information is shared around the world today

With a few data laws to be seen

One might wish for regulation

So do I, the Privacy Queen

Companies collect data like a swirling storm inside

Couldn’t keep them straight, heaven knows we’ve tried

Don’t let them in, don’t let them see

Be the private person you always want to be

Conceal, don’t reveal, don’t let them know

How much do they know?

Don’t let it go, don’t let it go

We can stop it furthermore

Don’t let it go, don’t let it go

Block cookies and slam the door

Someone should care

What they’re going to say

The argument rages on

Cause breaches don’t bother them anyway

It’s great how some countries protect personal data by law

And the companies that once controlled it can’t get to it at all

It’s time to see what we can do

To test the limits and break through

Do right, not wrong, pass data laws

For all

Don’t let it go, don’t let it go

Pass some laws and rules

Don’t let it go, don’t let it go

Scrap those data tools

Take a stand, the data stays

Let your rights rage on

Big data flurries through the web and into the ground

Information spirals in millions of bits all around

And one thought crystallizes like an icy blast

Data is rarely deleted – the past is never past

Don’t let it go, don’t let it go

New uses rise like the breaking of the dawn

Don’t let it go, don’t let it go

Once given, that data’s gone

Take a stand

In this big data reign

Should data brokers rage on?

Privacy never stopped them anyway

Job Security?

In 2013 at the IAPP fall conference, Lisa Sotto (a renowned privacy and cybersecurity attorney with Hunton & Williams and member of the Board for IAPP) remarked during an open session to the attendees that if she heard one more person exclaim "Job Security" she might have to punch them - I may be paraphrasing. I think she was kidding. But she was not exaggerating the repetitiveness of the sentiment by the attendees.

Is there job security for privacy professionals?  Probably yes. Oh, what the heck - let's abandon the pretense of being objective: yes. Yes. YES!  The world of privacy and data protection is growing by leaps and bounds. And not just in one area of the globe. Privacy and data protection is growing everywhere.

You may recall the somewhat recent headlines containing words like Snowden, NSA, and leak. These headlines, or rather the actions behind them, have created some additional headlines involving European Union and the U.S. trade. I will not address whether Snowden is a hero or a traitor - or whether what he did is even right or wrong. The end result is that the European Commission and various data protection authorities seemed to question their faith in the U.S./EU Safe Harbor program.

I do not really believe that the EU will completely withdraw it's determination in the adequacy of the Safe Harbor program if only because international trade would suffer tremendously. But on the other hand, I would not brush off their concerns either. Recently, the U.S. FTC Commissioner and the U.K.'s Information Commissioner signed a memorandum of understanding to work together to protect the privacy rights of consumers. Rather contemporaneously, the FTC initiated actions against 13 U.S. companies for violations of their safe harbor certification statements, as this author wrote about in an earlier post. So international cooperation is on the table and probably not disappearing anytime soon although there is a lot of work to be done.

Which segues rather nicely back to job security. Privacy is probably the hottest area of law right now, but privacy professionals can not allow themselves to get cocky or complaisant. We must be strategists and visionaries; we must foster understanding and better understand the business case; and we must see the trees and the forest. Privacy law is growing faster than any one person can track. There are multiple think tanks and watch dog groups dedicated to the topic.

I laugh - usually out loud - when I hear other compliance professionals complain that they run from fire to fire. We all do. It's the nature of compliance. I dream of a day when I am notified that some area is suffering a drought and we can proclaim a high alert for the potential for fire. And even ban burning. Ha. Are you following me in this analogy?  Privacy professionals are like the forest rangers on lookout towers. There is a lot of landscape to watch, we are usually alone, we have to track winds, investigate smoke, and be able to call the troops when needed....but only when needed.

It's not glamorous. It's a hard job, but someone needs to do it. In fact, lots of someones need to do it. 

If I were to counsel someone who was interested in either entering the privacy profession or growing within it, there are three things I recommend:

• Learn the technical aspect of the job. Yes, there are Information Security Professionals who generally originate in IT, but it would benefit the privacy professional to learn to speak intelligently about the technology.
• Partner with the Information Security professional. This person should be your other half. They need to respect your knowledge and be able to depend on you and vice-versa.
• Never think you know it all or that you are an expert. There is simply too much untested in the courts and much too much being changed every day - from laws to technology. 

I would not proclaim job security except when joking. Half the time I am afraid I am failing at the job because there is so much to do. The other half does a victory dance when a co-worker knows what the letters PII mean. It's the small things that make me happy - and the big things that keep me employed.

Lessons from The Butler

Recently, we watched Lee Daniels' The Butler.

This was one of those movies I knew I could not watch in a theater, so I had planned to watch it at home. It was worth the wait. Forest Whitaker was the lead playing Cecil Gaines. At a young age in the cottonfields of Mississippi (1926), he watched his mother pulled into a shed by the farm owner, a Caucasian guy. Cecil's father objected after screams were heard from the shed and was shot for his insolence. The elderly white landowner took Cecil into the house to train him as a house worker (not even for the purposes of this blog will I use the horrible word I heard so much growing up). He was told that when he was in a room, it should feel empty.  After a few years, he left. He wound up working in a bar/restaurant who taught him to see what the customers want and provide it. Never be political. Never have an opinion. He then moved to a hotel in DC. Eventually, he was recruited for the White House during Eisenhower's term. He served through the Reagan term.

Throughout the movie, we also see the personal interactions with friends and family - his wife (played by Oprah Winfrey) who drank to cope, his oldest son who was a civil rights activist and often in and out of jail, and his youngest son who died in the Vietnam war.

So what lessons can we learn from the Butler?

Let's start with the premise of servants not existing - the room should feel empty. Many workers are unobtrusive. In fact, it does not even need to be a worker - people can be unobtrusive. Eventually, others forget or do not even notice they are there. It is an incredibly effective way to gain information. "Don't mind me...no one here....just discuss your deepest secrets." Can you imagine what this man learned serving the presidents, their wives, kids, the other politicians?  wow.

Some people perfect the art of listening and watching. Cecil learned to identify what the customers want and provide it before they themselves knew they wanted it. Discerning based on person, activity, mood, etc.

Gaines had issues with his wife who sometimes asked just for some little tidbit of inside information, like ho many shoes Jackie Kennedy had. Gaines would not tell her. However, it came out that one of the other butlers did tell his wife small things. Gaines seemed to have an issue with that sharing, but there was no evidence that these "breaches" were reported. And later in the movie, he did tell his wife that Mrs. Kennedy had about 125 pairs of shoes.

One thing Gaines learned from the bar.restaurant was to have two faces: one you showed when at work and one for your personal life. As a butler, he was expected to show no emotion, preference, or opinion. Two faces. He came face-to-face with that effect, if you'll forgive both the pun and the redundancy, when he was a guest at a state dinner at the Reagan's behest. He was served by his co-workers and saw the face directed towards him. He did not like facing the reality of who he was and/or what others saw him as. He was forced to hide himself in order to work. Rather than a public face and a private face, he had a private face for work and a real face for private.

Gaines took pride in his work. From the shoes he polished to the people he served and protected. And he was humble as a person, proud of his work, and willing to stand up for the right thing. He made mistakes and learned from them.

So there were some lessons to learn in The Butler. Perhaps some of the greatest events of our history occurred or were made in the presence of some very discrete individuals, who might not have even been noticed or even considered persons with equal rights.

Interesting movie. Interesting times. Interesting.

My Privacy Heroes

I haven't written in a while, so please forgive me. Privacy issues remain daily headliners and I have no excuse for not writing. First, last week, I was at the International Association of privacy Professionals' Global Summit. It was sold out, which I think means a total of 3000 people attended. Wow.

I know, right? 3000 people from around the globe care about privacy. Yes, we are all dorks. But we're really cool dorks and have our own set of heroes and villains. Some of my own personal privacy heroes are listed below.

Dan Solove, John Marshall Harlan Research Professor of Law at the George Washington University Law School. He is a Senior Policy Advisor at Hogan Lovells. He is also the founder of TeachPrivacy, a company that provides privacy and data security training programs to businesses, schools, healthcare institutions, and other organizations. I had the privilege of getting to know Dan a little over the past two years and still have that little piece inside me that still squeals like a little girl simply because my privacy hero talks to me. The IAPP did a little blurb on me once (the link only works for those who log into IAPP, sorry) and soon thereafter, Dan sent me an email. Please understand that at the time, I probably had 5 articles and three books of his sitting on my desk. So I did a little happy dance before I calmly replied to him. I am happy to say that we have maintained a friendly relationship and I hope - I pray - to one day be on his level of competency.

Kirk Nahra a partner with Wiley Rein, LLC. Kirk has been involved with IAPP, I think since its inception. He has been on the IAPP's Board of Directors several times and currently serves as editor of the publications. I do not remember if I met him at a Blue Cross forum in Colorado or at an IAPP event, but either way, we seem to cross paths often, just not often enough. He sends out privacy law updates and observations - and frankly, is simply my most favorite U.S. privacy attorney.

Cass Sunstein is currently a professor at Harvard Law School and is a scholar beyond reproach. This is the only privacy hero I have that I do not know personally and have not met. I was supposed to hear him last year at a conference that my travel was cancelled due to weather. Oddly, I know more of him through my PhD program in Public Affairs than I do my privacy work. I would probably give my right kidney to talk with him for a hour or so (my right kidney is pretty shot, so that might not be a high enough payment).

So there is my list of heroes. I am not currently providing a list of villains, but let's just agree that most of them are corporate level, not individuals.