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By Jedidiah Bracy, CIPP

At a Senate Judiciary Subcommittee hearing on electronic health records and healthcare privacy, Sen. Al Franken (D-MN) said it is “not satisfactory” that crucial protections provided for under the Health Information Technology for Economic and Clinical Health Act (HITECH) have not yet been implemented.

Of major concern for Franken is the lack of finalization of the business associates rule by the U.S. Department of Health and Human Services (HHS).

When asked, the HHS’ Office for Civil Rights (OCR) Director Leon Rodriguez said he agreed the rule—which was included in HITECH—would “plug holes” in the Health Insurance Portability and Accountability Act (HIPAA). Noting that they had received “extensive comments” on the rule, Rodriguez said the OCR staff is “working diligently” but have no time frame for finalization.

“Hurry up,” said Franken.

“Implementation has been agonizingly slow,” said Deven McGraw, director of the health privacy project at the Center for Democracy & Technology. She stressed the need for regulations—“almost three years later and we still don’t have them.”

McGraw noted that patients need to trust that the information they are sharing with their providers will be handled securely. “We’ve been hearing about promising results. At the same time the public expresses concern about the security and privacy of their information.”

As a result, she said, patients decide to not share pertinent information, lie or refuse to receive treatment. “The wild, wild west for data is not an environment of trust,” she said.

Joined by ranking member Sen. Tom Coburn (R-OK) as well as Sens. Sheldon Whitehouse (D-RI) and Richard Blumenthal (D-CT), Franken queried Rodriguez and U.S. Department of Justice Attorney Loretta Lynch about why there has been a “lack of enforcement” in cases involving healthcare privacy.

Lynch said enforcement numbers “are not reflective of what the Department of Justice is doing.” She agreed to work with Franken’s staff to provide additional enforcement information.

Rodriguez was optimistic. He said “the beginnings of change are happening” under HITECH, noting that the 2009 legislation has changed the environment because of the breach notification rule, increased penalties for violations and the introduction of the OCR’s HIPAA compliance auditing program.

Saying that “laws are useful only to the extent they are rigorously enforced,” Blumenthal asked Hennepin County Medical Center Privacy Officer Kari Myrold if laws have been effectively enforced.

Myrold echoed Blumenthal’s question and added, “I think a big reason for it is that the final rules aren’t here…People aren’t taking them seriously.”  

Franken summed up his findings by saying, “There are few kinds of information more sensitive than health information…When patients can be assured of privacy, that’s when electronic health records can be at their fullest benefit.”

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