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Industry Insiders Discuss HIT and HIPAA Issues March 30, 2009 by Astrid Fiano, Writer A significant part of President Obama's health care reform agenda is the push for implementing more health care technology. In the health care field privacy is always a major concern, and was the impetus of the Health Insurance Portability and Accountability Act of 1996--protecting the privacy of individually identifiable health information in all formats, and the confidentiality provisions of the Patient Safety Act--protecting identifiable information being used to analyze patient safety events. So those in the health care industry now wonder will the Administration's focus on health IT (HIT) present more challenges to privacy concerns? As part of a continuing focus on HIT issues, DOTmed interviewed industry expert Kirk J. Nahra, a partner in the Washington D.C. legal firm of Wiley Rein LLP, specializing in privacy and information security for the health care and insurance industries, and named an expert practitioner by the Guide to the Leading U.S. Healthcare Lawyers. DOTmed also interviewed Lise Rauzi, Vice President, Training Development, for Health Care Compliance Strategies (HCCS). HCCS provides online training compliance for employees. Nahra notes that regardless of the rising concern over privacy and the new HIT legislation, there have already been formal HIPAA security rules on electronic information in place for several years--the health care industry compliance has just been inconsistent. The problem -- to the extent there is one -- is that HIPAA rules are process-oriented, Nahra explained. The rules don't tell an entity what to do, but rather what to evaluate--a standard set of questions, but without a standard set of answers. For example, a covered entity has to have an internal audit, but the rules do not tell the entity how best to carry out that internal audit. Not surprisingly, different businesses have different ideas on how to implement their HIPAA evaluations

As if you needed another sign that times are tough, here's a fairly reliable measure: The number of cases handled by the advertising industry's best-kept secret -- self-regulation -- are on the rise. Last year the National Advertising Division of the Council of Better Business Bureaus handled 214 cases, up 22% from 2007. And in 2008 ad challenges, in which one advertiser challenges a competitor's claim, rose 31% to 81 cases. Why the increased activity? It's a deadly fight for share of market out there, and in down times advertisers tend to revert to hard-hitting comparative advertising. NAD's purpose is to substantiate these kinds of attack ads, and it can do it faster and cheaper than litigation can. The Federal Trade Commission seems to like the idea of letting advertisers settle their own disputes. When the National Advertising Review Council, the body that sets the policies and procedures for the NAD to enforce, started 38 years ago, then-FTC Chairman Bob Pitofsky wasn't an early convert. "If the truth be known," he said 10 years ago, "there was some skepticism about how the whole thing would work. The FTC had been burned time and time again by unkept promises of self-regulation by other industries. But this group has proved the skeptics wrong. Today, advertising has the best self-regulatory system of any industry in the country." The outgoing chairman of the FTC, William Kovacic, is also a fan. But the current crop of FTC commissioners don't seem as convinced, although they seem somewhat willing to give self-regulation a chance. In issuing guidelines for online behavioral advertising, FTC Commissioner Jon Leibowitz said the industry needs to do a better job of "meaningful, rigorous self-regulation, or it will certainly invite legislation by Congress and a more regulatory approach by our commission."A joint industry task force quickly seized on that statement as an endorsement for self-regulation, and said it supported FTC's goal of a "comprehensive and eff

"A key, centrist digital rights group is set to put out a report calling for strong federal privacy laws and guidelines to regulate the growing tracking and targeting of Americans online. It argues that the self-regulation approach that industry fights for just hasn't worked. The online ad industry has "historically failed to fully implement its self-regulatory principles," according to the 34-page draft report by the Center for Democracy and Technology. CDT is a centrist D.C. group that works with and is substantially funded by the tech industry, including companies like Facebook, Google and AOL that are deeply invested in targeted ads. "Recently revised self-regulatory principles still fall short (.pdf) even as written," charges the draft, obtained by Wired.com. These tough words spearhead a new tactic for a group more used to convening inside-the-Beltway tech policy forums than launching ACLU-style send-outraged-e-mail campaigns. The CDT, which splintered off from the rabble-rousing Electronic Frontier Foundation 15 years ago, is also planning to launch a "Take Back Your Privacy" campaign on Thursday, designed to garner support for its call for comprehensive federal privacy legislation. Dozens of tech firms, known and obscure, record users' behaviors as they interact with search engines, blogs, e-commerce sites and even government websites. The tracking goes on in the background with little knowledge by consumers and even less oversight from government authorities. The tech industry - like others subject to potentially blunt-forced government regulation - has argued that policing itself was enough to prevent egregious privacy intrusions that could proliferate without any real chance individuals would even be aware of them."

Last month, the digital advertising industry's use of behaviorally targeted advertising gained a reprieve of sorts when the Federal Trade Commission issued a final report confirming its earlier support of self-regulation. But some commission members remained concerned about ads that are shown to Web users based on their previous online activities, and in particular the possibility of violations of online privacy. Some form of legal restrictions may be imposed on the industry, the FTC indicated, if the online ad industry isn't up to the task of regulating itself. "Privacy is definitely the biggest concern today," said Joe Apprendi, CEO of Collective Media, an online advertising network based in New York. "There has been the concern that through such approaches as deep-packet technology, companies can leverage information through subscriber-based providers to marry anonymous behavioral segment data and identify real people. "The fact is, online advertising is subject to a higher standard that offline direct marketing tactics," Apprendi said. The FTC report, "Self-Regulatory Principles for Online Behavioral Advertising," continues to advocate voluntary industry self-regulation, in keeping with its principles governing online behavioral advertising issued at the end of 2007, despite the urgings of consumer advocacy groups that it impose rules regulating online advertising. The commission's new guidelines are based on four principles: * Transparency and consumer control. The commission advises that Web sites that collect data for behavioral advertising provide "a clear, concise, consumer-friendly and prominent statement" that the data are being collected to provide ads tailored to the user's interests and that the user has an easy and obvious way to choose whether to allow this. * Security for data retention. Companies that collect data for behavioral advertising should provide "reasonable" protection of that information and reta

Educating consumers about what behavioral targeting is and is not up to, deep within the cookies of their browser, seems to be a bit like alternative energy development. Pretty much everyone says the industry should be doing more about it, and yet it is hard to see where and with whom it starts. Most online materials related to BT are pitched to one end of the value chain, marketers. It's not clear to me that most of the companies in this space are even comfortable talking directly to consumers, let alone taking the time to develop an accessible language to describe their process. Specific Media controls the BehavioralTargeting.com domain and uses it to educate marketers about its methods. Even the Wikipedia entry for this field is really an explanation for advertisers. This is understandable, since most people who are familiar with the term likely come from the industry. But it seems to me the industry misses an opportunity to practice more often, and in more places, what it knows ultimately needs to be done. You guys need to find better, clearer, simpler ways to explain what it is you are doing in our browsers -- and why you are doing it. And what are the real benefits and risks a consumer incurs by tacitly agreeing to your presence? Isn't every possible point of contact with a suspicious consumer a teachable moment? In an earlier post, I recounted how I struck some retargeting gold when FetchBack tagged and remarketed me during my travels online. An opt-out option is clearly available at the front page of the FetchBack site. Unfortunately, from there you either opt-out (kick over to the Network Advertising Initiative site) or click into a long scrolling privacy policy that doesn't actually get around to explaining retargeting until a few screens down.

While the recession injured many industries in 2008, health care was one of the few bright spots in the employment picture, growing by 372,000 jobs last year, according to the U.S. Bureau of Labor Statistics' January 2009 Employment Situation Summary. The large aging population has health care employers in need of qualified workers: stat. Therefore, despite the current economic conditions, health care employers will continue to increase staff in 2009, according to CareerBuilder.com's annual health care hiring forecast, conducted online within the U.S. by Harris Interactive. Close to one-in-five (17 percent) of large health care employers (50 or more employees) plan to increase the number of full-time, permanent employees in 2009, while 67 percent foresee either making no change in the number of employees or are unsure. Sixteen percent plan to decrease the number of employees. "The health care industry continues to boast high demand for qualified workers. Employers are reacting to this need by continuing strong recruiting efforts this year," says Jason Ferrara, vice president of corporate marketing for CareerBuilder.com. "Half of health care employers, the highest among industries we surveyed, have open positions for which they can't find qualified candidates. In response, health care employers will have to adjust their recruitment and retention strategies to find and keep top talent."

Online ad industry will probably continue to be a hot-button if FTC Commissioner Jon Leibowitz is named chairman. The Federal Trade Commission may strengthen its focus on online advertising and privacy if, as is expected, current FTC Commissioner Jon Leibowitz is named chairman of the agency. "He would certainly keep privacy and online advertising as a focus of the FTC, so I think [his potential appointment] does matter," said Mike Zaneis, VP of public policy at the Internet Advertising Bureau. Reports indicate Leibowitz will be named as head of the commission, replacing William Kovacic. Kovacic replaced former Chairman Deborah Platt Majoras in March 2008, when she left to join the private sector as VP and general counsel of Procter & Gamble. "A kind of privacy switch is going to go on at the FTC [once the new chairman is named] and they're going to engage in this issue in a much more serious way," said Center for Digital Democracy Executive Director Jeff Chester. "Under a Leibowitz regime we would get the kind of serious industry analysis that so far has been lacking from the Bush era approach." "Leibowitz has been a leader on privacy issues," said Zaneis, who expects a Leibowitz-run FTC to continue along the agency's current path of pushing for industry self-regulation, rather than creating new regulations for online advertisers. As a commissioner, Leibowitz, a Democrat, has not ruled out FTC regulation of things like behavioral targeting. During a two-day FTC forum held in Washington, D.C. in 2007, Leibowitz noted, "The marketplace alone may not be able to solve all problems inherent in behavioral marketing." He revealed his sense of humor, adding, "If we see problems...the commission won't hesitate to bring cases, or even break thumbs."

As arguments swirl over online privacy, a new survey indicates the issue is a dominant concern for Americans. More than 90 percent of respondents called online privacy a "really" or "somewhat" important issue, according to the survey of more than 1,000 Americans conducted by TRUSTe, an organization that monitors the privacy practices of Web sites of companies like I.B.M., Yahoo and WebMD for a fee. When asked if they were comfortable with behavioral targeting - when advertisers use a person's browsing history or search history to decide which ad to show them - only 28 percent said they were. More than half said they were not. And more than 75 percent of respondents agreed with the statement, "The Internet is not well regulated, and naïve users can easily be taken advantage of." The survey arrives at a fractious time. Debate over behavioral advertising has intensified, with industry groups trying to avoid government intervention by creating their own regulatory standards. Still, some Congressional representatives and the Federal Trade Commission are questioning whether there are enough safeguards around the practice. Last month, the F.T.C. revised its suggestions for behavioral advertising rules for the industry, proposing, among other measures, that sites disclose when they are participating in behavioral advertising and obtain consumers' permission to do so. One F.T.C. commissioner, Jon Leibowitz, warned that if the industry did not respond, intervention would be next. "Put simply, this could be the last clear chance to show that self-regulation can - and will - effectively protect consumers' privacy," Mr. Leibowitz said, or else "it will certainly invite legislation by Congress and a more regulatory approach by our commission." Some technology companies are making changes on their own. Yahoo recently shortened the amount of time it keeps data derived from searches. It is also including a link in some ads that explains how

The use of data in the online world is being governed by the rules of the "Wild West," the European Commission will argue this week, in the clearest warning yet to Internet companies to curb how they use the information they collect on users. With concern growing over the amount of data gathered by the biggest players on the Internet, the comments will challenge the industry to agree on new principles for its use - or face a clampdown. Meglena Kuneva, the European consumer affairs commissioner, will argue that basic consumer rights are being violated by companies that profile and target consumers, according to a draft of a speech seen by the International Herald Tribune. "From the point of view of commercial communications," the draft speech reads, "the World Wide Web is turning out to be the world 'Wild West."' Kuneva is to deliver the speech to a meeting of around 200 industry and consumer representatives on Wednesday. Her comments reflect the anxiety of regulators on both sides of the Atlantic about the commercial use of information garnered through online tracking made possible via "cookies" - small files dropped into users' computers by the Web sites they visit. These cookies help companies take note of users' habits and can be sold to advertisers to help them target their marketing efforts. But their use raises serious questions about who knows which sites we visit and what they do with that information. In the United States, the chairman of the Federal Trade Commission, Jon Leibowitz, warned recently that, if the industry does not show it can protect users' privacy, it will invite legislation from Congress and a more regulatory approach from the F.T.C.

The Payment Card Industry Data Security Standard (PCI DSS) is ineffective and major payment processing infrastructure improvements are needed to secure credit and debit card transactions, lawmakers said Tuesday. The House Subcommittee on Emerging Threats, Cybersecurity, Science, and Technology, part of the House Committee on Homeland Security, held a hearing in Washington, D.C., on Tuesday to examine the effectiveness of PCI DSS. "The bottom line is that if we care about keeping money out of the hands of terrorists and organized criminals, we have to do more, and we have to do it now," said U.S. Rep. Yvette Clarke (D-N.Y.), who chairs the subcommittee. "The payment card industry and issuing banks need to commit to investing in infrastructure upgrades here in the United States." Clarke called on the industry to implement encryption on its credit and debit card processing networks and said the deployment of chip and PIN technology could significantly reduce the amount of stolen payment data. Chip and PIN technology is used in Asia and Europe. The technology replaces the magnetic strip on the back of a card and adds a four-digit personal identification number (PIN) to confirm a payment.

"Madison Avenue has joined forces with Internet companies in a last-ditch attempt to stop privacy regulations over the $29 billion online-ad industry. The industry is finalizing an ad campaign to educate consumers about how digital advertising works, creating an icon that would appear on Web pages or ads alerting consumers if their activity is being tracked and deploying new technologies to police the Web for illegal activities. At issue is the practice of tracking consumers' Web activities - from the searches they make to the sites they visit and the products they buy - for the purpose of targeting ads. The efforts follow calls from the FTC earlier this year for Web advertisers and Internet companies to do a better job explaining how they track and use information about consumers' Web activities and creating a simple way consumers can opt out of being tracked. Meanwhile, scrutiny in Washington continues to build. Lawmakers and regulators have broadened their scope beyond the Internet and are starting to examine privacy practices for a wider swath of media and technologies, from mobile phones and newfangled interactive TV commercials to telephone pitches and the advertisements consumers receive in their mailboxes."

A top lawyer for P&G called upon industry execs to work harder than ever to defend self-regulation of the ad business at a gathering of top advertisers today. Speaking about the tough economic environment and increased government involvement in business affairs, Deborah Platt Majoras, VP-general counsel at P&G, said the ad business has to tout that it has been responsible and doesn't need additional oversight. The current business environment -- one in which market failures have prompted government bailouts and heightened government oversight -- is leading to a more skeptical outlook from policymakers about self-regulation. ' "The road ahead is not going to be easy, but we are not helpless," said Ms. Majoras, who, prior to joining P&G served as chairman of the Federal Trade Commission from 2004 to 2008. "The industry has been far more responsible than we get credit for. It's time that we backed up rhetoric with facts," she said.

Eight years ago, a woman we'll call Sarah discovered that she was not biologically related to the father she had known all her life. Sarah, her mother revealed, was "donor-conceived." Her parents, after trying without success for a pregnancy of their own in the late 1970s, turned to a fertility center, where Sarah's mother was artificially inseminated with sperm from an anonymous donor. At the time sperm banks did not offer detailed donor profiles. Upon discovering the truth, Sarah was told what her parents had been told about her biological father: He was a medical student, possibly of Scandinavian ancestry. Sarah, who describes her family as "loving and stable," was shocked. Today she is also sick. A year before finding out about her conception, she began to experience severe, unexplained bladder problems. She has been seeing doctors at Johns Hopkins; so far they haven't figured out the cause. Recently married, Sarah worries that she may pass the illness on to future children. The medical history of her biological father could provide a crucial piece of the diagnostic puzzle. But in the early days of artificial insemination, clinics often shredded or burned files to ensure donor anonymity and client privacy. Sarah's father's identity may be locked away in storage somewhere, or it may have been destroyed. Although aware of the likely futility of her search, Sarah still continues-writing the clinic, nurses, her doctor-in the hope that someone can help. Faced with stories like this, the fertility industry and a few state governments are trying to come up with a way to ensure that future donor-conceived children will have access to their fathers' medical files. A national registry, for example, could allow banks to monitor how many times a man donates semen and how many children are born from his seed, to share updates about medical issues and to facilitate long-term research on health outcomes. But any such registry poses a threat to the p

President-elect Barack Obama has promised to computerize all of America's medical records within five years. He made the pledge last week in a speech at George Mason University. "This will cut waste, eliminate red tape and reduce the need to repeat expensive medical tests," he said. "But it just won't save billions of dollars and thousands of jobs, it will save lives by reducing the deadly but preventable medical errors that pervade our health care system." But the road to digitized medical records will be a tough and expensive one, CNN Money reported. Today, only about 8% of the country's 5,000 hospitals and 17% of its 800,000 physicians use electronic medical records. There is also the issue of patient privacy. Numerous hospitals have faced security issues since moving to electronic medical records. The Industry Standard reported on a security breach at a Los Angeles hospital last month. And then there is the cost. Studies done by Harvard, RAND and the Commonwealth Fund peg the cost of the digitization plan between at least $75 billion to $100 billion, according to the CNN article. However, the health care industry spends $2 trillion dollars a year, so the $100 billion may be well worth the long-term savings.

"It could be quite a manic Monday for digital advertisers. Privacy advocates are calling Dec. 7 "Pearl Harbor Day" for the Internet advertising industry as the Federal Trade Commission launches its public roundtables on consumer privacy issues. Certainly many members of the public as well as legislators are up in arms over practices such as behavioral tracking and targeting, but a great deal of this anxiety comes down to a lack of knowledge regarding practices. The Interactive Advertising Bureau has been applying preventative measures, including releasing "Self-Regulatory Principles for Online Behavioral Advertising". Its latest effort is the consumer education campaign "Privacy Matters," which will be featured on a broad array of media sites. It's a conciliatory recognition that the industry has released paranoia in the general populace by not clearly explaining the nuts and bolts of targeting and other advances."

Companies that track consumer behavior on the Web for targeted advertising without proper consent are near their "last chance" to self-regulate, the head of the U.S. Federal Trade Commission said on Monday. Privacy advocates say regulations on big phone and Internet companies, such as AT&T Inc and Google Inc, are too lax, giving the firms excessive control over consumers' personal information. "From my perspective, the industry is pretty close to its last clear chance to demonstrate" that it can police itself, FTC Chairman Jon Leibowitz told the Reuters Global Financial Regulation Summit in Washington. Earlier this year, the FTC issued new guidance urging websites to tell consumers that data is being collected during their searches and to allow them to opt out. If companies fail to do a better job of making their privacy policies understandable to the average person, momentum will keep building for greater regulation, Leibowitz said. "It's really up to industry."

The French parliament on Thursday voted down an Internet piracy law, which had largely been expected to pass. The "Creation and Internet" law, which won the preliminary approval of the parliament last week, would compel Internet service providers to take graduated actions against customers accused of illegally downloading copyrighted material. After warning a customer against such actions for a third time, an ISP could suspend the person's Internet access for up to a year. Because the bill was expected to pass, few members of parliament were present for the final vote on the bill, according to the Associated Press. Opponents of the legislation, led by the Socialist party, rejected the measure by a vote of 21 to 15. The legislation had the support of the ruling UMP party, to which President Nicolas Sarkozy belongs, as well as the support of the Recording Industry Association of America. Backers of the bill intend to re-introduce an amended version within the coming weeks, according to reports. The entertainment industry has suggested to the United States' Congress that it should consider adopting European methods of combating copyright infringement. The United States, members of the European Union, and other countries may also consider making ISPs liable for infringement through international treaties.

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The Senate and House appear headed for a clash over competing visions of how to protect the privacy of patients' electronic medical records, with the House favoring strict protections advocated by consumer groups while the Senate is poised to endorse more limited safeguards urged by business interests. President Obama has called creation of a nationwide system of electronic medical records fundamental to health-care reform, and both chambers of Congress have included about $20 billion to jump-start the initiative as part of their stimulus bills. But as with much in the stimulus package, it is not just the money but the accompanying provisions that groups are trying to influence. The effort to speed adoption of health information technology has become the focus of an intense lobbying battle fueled by health-care and drug-industry interests that have spent hundreds of millions of dollars on lobbying and tens of millions more on campaign contributions over the past two years, much of it shifting to the Democrats since they took control of Congress. At the heart of the debate is how to strike a balance between protecting patient privacy and expanding the health industry's access to vast and growing databases of information on the health status and medical care of every American. Insurers and providers say the House's proposed protections would hobble efforts to improve the quality and efficiency of health care, but privacy advocates fear that the industry would use the personal data to discriminate against patients in employment and health care as well as to market the information, often through third parties, to generate profits.

Two firms certified to asses a company's compliance with the Payment Card Industry Data Security Standards (PCI DSS) have been placed under remediation by the PCI Security Standards Council. Two firms certified to asses a company's compliance with the Payment Card Industry Data Security Standards (PCI DSS) have been placed under remediation by the PCI Security Standards Council. "We have a contractual relationship with the PCI Security Standards Council and they can pull our certification at any time," Bates said, adding that the firm is working wholeheartedly to remedy the situation. Chris Konrad, senior vice president of client services at Fortrex, did not return a phone call seeking comment. Fortrex's business is U.S-based. The company is in its sixth year assessing service providers and merchants. In addition to being certified to conduct payment application quality security assessments, the firm sells risk management consulting services. It is a reseller in security vendor Qualys Inc.'s PCI Partner Program, according to the company website. Qualys said its "program gives partners generous margins based on their level of certification." The PCI Council launched its quality assurance program for assessors in September to address growing concerns from merchants about the quality of their assessments and other issues. Merchants have complained that some QSAs don't appear to have the technical skills necessary to conduct a thorough assessment. Other merchants have raised issues with QSA's pitching security products during the assessment process. Merchants that receive negative feedback are placed on probation and a revocation process is in place if assessors do not address the issues identified by the council.

A health care industry coalition on Monday released a prescriptive security framework that organizations can use to safeguard patient records as they increasingly move online. The framework, released by the Health Information Trust Alliance (HITRUST) -- which represents health care providers, pharmacies, insurers, biotech firms and medical device manufacturers -- is based on well-known standards such as COBIT, NIST and ISO 270001. But this is the first benchmark developed specifically for protecting health data. "It's tailored to protecting health information right out of the gate," Michael Wilson, vice president and chief information security officer of McKesson, the largest U.S. pharmaceutical distributor, told SCMagazineUS.com on Monday. "It's just a different sort of data. It's still structured [like other verticals], but there's a lot more of it in health care." The framework was created to improve adoption rates with regulations such as the Health Insurance Portability and Accountability Act (HIPAA) and increase patient confidence in the security of their information. It also arrives on the heels of the new $787 billion economic stimulus bill, about $20 billion of which is earmarked to encourage health care organizations to adopt electronic health records as a way to reduce the number of medical errors and save money. The stimulus bill, in itself, contains srict privacy and security regulations for patient information. The standards took about 18 months to devise and can be implemented by organizations of any size, according to HITRUST. "2009 will be a turning point for information security in the health care industry, when organizations will begin implementing the framework...and create a cascading effect that will impact and benefit the entire health care ecosystem," Daniel Nutkis, CEO of HITRUST, said in news release. Wilson said the framework also will enable companies such as McKesson to show their customers and business partners that they are taki