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● HIPAA Omnibus Rule Don’t ask,

don’t tell How the Omnibus Final Rule assigns responsibility for safeguarding protected health information (PHI). By Chris Davis

health information (ePHI) on behalf of covered entities (i.e. healthcare providers) are making nuanced arguments that HIPAA does not apply to them.

A

lthough the Omnibus Final Rule attempts to make it clear in its broad defi nition of who is and who is not a business associate (BA), some IT service providers that handle electronic protected

Chris Davis is

compliance solutions architect, Verizon. For more on Verizon: www.rsleads. com/307ht-202

One of the arguments revolves around encrypted ePHI. 87.3%87.3%

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Wherein the service provider does not have access to the decryption key – and if the service provider doesn’t know what’s inside the encrypted data – then the service provider cannot take responsibility for its contents. Other service providers are simply refusing to be considered a business associate, and do not provide a means for covered entities to discuss the nature of the data stored or processed on the provider’s servers. Either way, it amounts to a kind of “Don’t ask, don’t tell” for health IT, a practice in stark contrast to the intent of the Omnibus Rule, which goes into eff ect Sept. 23, 2013, with stiff penalties for those who do not comply. T e problem with this thinking is that it takes a myopic view of the Health Insurance Portability and Accountability Act (HIPAA) Security Rule as well as the Omnibus Final Rule. From an outsider’s perspective, “security” in the context of HIPAA is typically translated as “protecting ePHI against data breaches.” Hence, from this perspective, if the ePHI is encrypted, it is highly unlikely that an unauthorized person can gain access to this information. But HIPAA security is not only about protecting ePHI against unauthorized access. Equally important is ensuring that ePHI is available to authorized individuals upon request to provide care.

Service providers doing business with covered entities need to realize that they are responsible for ePHI – no matter the form – and that they too may be held accountable at the discretion of the Department of Health and Human Services.

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