Cybersecurity & Healthcare: Does Cybersecurity Act Help or Hurt?

There’s been a lot of talk about the new Cybersecurity Act of 2015, but does Section 405: Improving Cybersecurity in the Healthcare Industry really do enough?  While the bill is a welcome start to help lower cybersecurity risks, the improvements do not do enough to protect us from the compromise of sensitive information.

Within 90 days of the bill’s passage, a healthcare industry task force will be established by the Secretary of the Department of Health and Human Services (HHS) in consultation with the Director of the National Institute of Science and Technology (NIST) and the Secretary of the Department of Homeland Security.  This task force of healthcare industry stakeholders, cybersecurity experts, and related federal agencies has six responsibilities:

What Congress will do with this information once it’s compiled is an open question, particularly without ongoing resources for the effort. As it is written, the Cybersecurity Act of 2015 is basically a snapshot in time that creates even greater risk since cybersecurity threats change so rapidly and the task force is only in operation for one year.

Worse, the law aligns healthcare-industry security approaches to a common set of voluntary, consensus-based, and industry-led guidelines, best practices, methodologies, procedures and processes.  This common-set approach is intended to serve as a cost-effective resource to reduce cybersecurity risks for a wide range of healthcare organizations.  However, in healthcare, few organizations do things exactly the same way – a circumstance that sometimes creates too much flexibility and allows for the misinterpretation of the intention of security requirements.

There are already several guidelines, best practices, methodologies, procedures, and processes available for the healthcare industry such as those developed by HITRUST, NIST, ISO and others, and/or those that can be adapted from other industries (for example, the financial services industry) to serve healthcare organizations’ needs.  While interest in these approaches has increased in the wake of numerous, highly publicized major breaches, adoption has been slow. 

Worse, a voluntary approach doesn’t emphasize the importance of security within the healthcare industry itself; healthcare organizations will most likely ignore the guidance due to an overload of similar requirements. And unless Congress legislates specific sets of approved security-control frameworks, it’s my expectation that few organizations will actually “volunteer.”  What we may see is the industry ‘policing’ itself by requiring business associates and service providers to obtain approved validation such as HITRUST and/or SOC 2 certifications. 

Aside from the disappointment in making these approaches voluntary, it’s written within the law that HHS has no authority to provide for audits to ensure that healthcare organizations are in compliance.  Without enforcement, there is no compliance.  The agency can’t even mandate, direct, or condition the award of any federal grant, contract, or purchase pertaining to compliance with this common set of security approaches.  On top of this, there are no consequences for non-participation, not even an incentive through safe-harbor exceptions for organizations that voluntarily comply with the security approaches under development.

Let’s face it, the healthcare industry as a whole hasn’t taken security seriously and the lack of any formal enforcement of compliance has led to huge breaches and major concerns over the privacy and security of protected health information.  Why can’t the healthcare industry be more like the financial services industry in requiring that independent assessments be performed to validate/verify security compliance activities?  When it comes to protecting and safeguarding sensitive medical information, the health of the healthcare industry will be hard-pressed to improve until Congress and the regulators get tougher on healthcare organizations.