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It Isn’t Risk Management If You Can’t Lose

By Rich

I was reviewing the recent Health and Human Services guidance on medical data breach notifications and it’s clear that the HHS either was bought off, or doesn’t understand the fundamentals of risk assessment. Having a little bit of inside experience within HHS, my vote is for willful ignorance.

Basically, the HHS provides some good security guidance, then totally guts it. Here’s a bit from the source article with the background:

The American Recovery and Reinvestment Act of 2009 (ARRA) required HHS to issue a rule on breach notification. In its interim final rule, HHS established a harm standard: breach does not occur unless the access, use or disclosure poses “a significant risk of financial, reputational, or other harm to individual.” In the event of a breach, HHS’ rule requires covered entities to perform a risk assessment to determine if the harm standard is met. If they decide that the risk of harm to the individual is not significant, the covered entities never have to tell their patients that their sensitive health information was breached.

You have to love a situation where the entity performing the risk assessment for a different entity (patients) is always negatively impacted by disclosure, and never impacted by secrecy. In other words, the group that would be harmed by protecting you gets to decide your risk.

Yeah, that will work.

This is like the credit rating agencies, many aspects of fraud and financial services, and more than a few breach notification laws. The entities involved face different sources of potential losses, but the entity performing the assessment has an inherent bias to mis-assess (usually by under-assessing) the risk faced by the target.

Now, if everyone involved is altruistic and unbiased this all works like a charm. Hell, even in Star Trek they don’t think human behavior that perfect.

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Comments

There obviously needs to be some threat of sanction for not performing the analysis.  It should also be noted that this isn’t the first law like this.  I’ve noticed similar clauses in some of the state breach laws. 

Of course, if you cheat, you may just end up like this: http://www.databreaches.net/?p=7820

By ds


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