Escaping Notice, by Laying Low
HIPAA lawyer Matt Fisher has a thoughtful commentary inspired by an OCR investigation first reported on this site. Unlike the FTC who have tended to demand 20-year monitoring plans as part of their settlements with entities that have data security breaches, OCR tends to use a more educative approach without monetary penalties or long-term monitoring in responding to breaches. But is that enough to satisfy those whose PHI may have been compromised or who may have suffered because of a breach? Should there be more monetary penalties or public disclosure? Matt writes, in part:
While behind the scenes resolutions work very well for the entities involved, a different perspective should also be considered. Specifically, the perspective of the complainant if there is an alleged violation of a HIPAA requirement or the individuals whose protected health information is impacted in the event of a breach. In those instances, the aggrieved individuals may ask why more was not done to penalize the entity or impose some punishment given the harm to the individual that likely cannot be “remedied” in the individual’s eye. While retribution will not necessarily result in satisfaction, a very real human desire can arise to see it imposed regardless.
Given what should be a real consideration of not discounting the harm to individuals, should OCR pursue more enforcement actions that result in penalties or another form of public reprimand? The answer is not clear and not one subject to easy advocacy.
Read all of Matt’s commentary on Mirick O’Connell’s The Pulse.