Health Privacy Official’s Departure Unlikely to Rock the Boat

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By James Swann

The government’s focus on health-data privacy is unlikely to waver following a senior official’s recent resignation.

Deven McGraw, deputy director for health information privacy for the Health and Human Services Office for Civil Rights (OCR), left her post last month, and is currently working at an undisclosed Silicon Valley startup. McGraw also served as the acting chief privacy officer at the Office of the National Coordinator for Health Information Technology (ONC).

The move comes as cyberattacks increasingly have impacted the health-care sector, including this summer’s WannaCry and NotPetya attacks. Concerns about health-care cybersecurity has also been raised in Congress, and a bipartisan bill ( H.R. 4191) was introduced Nov. 1 that would create a position within the Department of Health and Human Services to oversee cybersecurity.

“McGraw’s departure from the OCR is certainly a loss for the OCR, but I don’t expect to see the agency skip a beat when it comes to HIPAA enforcement,” Alessandra Swanson, a privacy attorney with Winston & Strawn LLP in Chicago, told Bloomberg Law.

Swanson, who worked at the OCR from 2009 until 2015, said the office’s Health Insurance Portability and Accountability Act compliance and enforcement initiatives would likely remain the same under Iliana Peters, who took over McGraw’s duties as the acting deputy director for health information privacy.

“McGraw has certainly been a leader in this space since its inception and while the loss is significant, I do not see it as a change which will alter the course OCR has been taking,” Alisa Chestler, a health-care attorney with Baker, Donelson, Bearman, Caldwell & Berkowitz in Nashville, Tenn., told Bloomberg Law.

Bringing in Peters as acting deputy director indicates that changes are unlikely in OCR’s mission, focus, or attention on cybersecurity issues, Chestler said.

Peters has been one of the more active officials in the cyberarena, and certainly knows the issues facing the industry, Chestler said.

Lack of Action

However, the OCR hasn’t released any HIPAA settlements over the past six months, which could point to a slowdown in enforcement activity behind the scenes, Eric Fader, a health-care attorney with Jones Day in New York, told Bloomberg Law. It remains to be seen whether McGraw’s departure will have any additional affect on enforcement activity, Fader said.

“It’s difficult to tell whether the Trump administration has affirmatively diverted resources from privacy and cybersecurity efforts, or whether things at the OCR and ONC have gotten bogged down for other reasons,” Fader said.

Cybersecurity Legislation

On the heels of McGraw’s departure was the introduction of the bipartisan HHS Cybersecurity Modernization Act by Reps. Billy Long (R-Mo.) and Doris Matsui (D-Calif.),. The bill, introduced Nov. 1, is designed to bolster the security of health information and would create a new position within the HHS dedicated to cybersecurity.

The chief information security officer position would be responsible for all information security issues within the HHS and would report directly to the HHS secretary.

“The new Matsui/Long bill is part of what I expect will be increasing congressional attention on cybersecurity issues, as we saw in August with the proposed Medical Device Cybersecurity Act [ S. 1656],” Fader said.

It’s hard to predict whether the bill will get much traction in Congress, Fader said, but it highlights that improving cybersecurity is on lawmakers’ to-do lists.

Bipartisan Effort

The bipartisan bill is also an indication that continued focus on cybersecurity planning isn’t lost on Congress, Chestler said. In addition to creating the new position, the bill would require the HHS secretary to develop a plan detailing how HHS is preparing for and responding to cybersecurity threats.

“This kind of legislation should be one of the few bipartisan bills that have a chance of making it through Congress in the upcoming session,” Chestler said.

Appointing a cyberlead at the HHS would help to underscore the concerns with the current HHS systems and controls, and would help shape the framework for the coming years, Chestler said.

There’s a growing consensus that cybersecurity is an issue that regulators need to focus on more, and it’s not surprising that lawmakers feel the HHS needs a more coordinated strategy across the entire department, Bradley Merrill Thompson, a Washington-based health-care attorney with Epstein Becker & Green PC, told Bloomberg Law.

The new position shouldn’t replace ongoing cybersecurity initiatives within HHS agencies like the Centers for Medicare & Medicaid Services and the Food and Drug Administration, but overall it’s a good thing, Thompson said.

One wrinkle in the bill is the absence of any additional appropriations for the position.

“That means HHS has to do this work instead of something else,” Thompson said.

Little Impact

Government leadership on cybersecurity is always important, but the new position will likely make no difference for health-care providers and provider organizations that are dealing with cyberissues every day, Colin Zick, a health-care attorney with Foley Hoag LLP in Boston, told Bloomberg Law.

“It’s not as if provider and provider organizations don’t know this is a fundamental issue to their ability to provide care,” Zick said. Their task is to be vigilant at all times, and to train their staff to avoid the pitfalls that can lead to data breaches, Zick said.

“So I don’t think the position or the person who fills it will make much of a difference in the cyber environment for health care,” Zick said.

To contact the reporter on this story: James Swann in Washington at jswann1@bna.com

To contact the editor responsible for this story: Kendra Casey Plank at kcasey@bna.com

For More Information

The HHS Cybersecurity Modernization Act is at https://www.congress.gov/115/bills/hr4191/BILLS-115hr4191ih.pdf.

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