In 2009, there were 498 reported breaches involving over 222 million records. And, of these 498 incidents, only six firms reported that they had deployed encryption or another strong security to protect the exposed data. This is not surprising given that most notification laws provide a safe harbor for encrypted data. In other words, there would not have been a need to report.
As well, of the reported records impacted by the breaches, 59% could be attributed to the conduct of independent contractors. Last year, over 45% of all breached records – 16 million – were compromised by the actions of independent contractors. In fact, the Ponemon Institute reports that 29% of all breaches are caused by third-party negligence. As the year progresses and budgets continue to be squeezed, the due diligence that was once used to vet vendors will unfortunately slip a bit. And, when vendor engagements start favoring pricing over controls, the resulting increase in vendor data loss may prove staggering.
Improving independent contractor due diligence by employing only those small business vendors with sound data protection practices in place will go a long way in improving your risk profile. Moreover, in addition to being a sound way to better protect sensitive data, encryption deployment has the added benefit of protecting you from notification laws and resulting lawsuits. The public notices speak for themselves.
With unemployment now stretching past 10%, the Ponemon Institute “Data Loss Risks During Downsizing” survey conducted last year is more relevant than ever. This survey found that 59% of employees who leave or are asked to leave a company are stealing proprietary or sensitive corporate data. Moreover, 79% of these respondents admit that their former employer did not permit them to leave with company data. Not surprisingly, 67% of respondents used their former company’s proprietary information to leverage a new job.
Electronic health records (EHR) should be on the risk management fast track. First, the FTC promulgated regulations that will require most hospitals to implement a written ID theft prevention program by June 2010. California and a few other states have already started requiring that healthcare providers implement technical and physical safeguards to protect patient medical information. And now, Title XIII of the American Recovery and Reinvestment Act of 2009, also known as the Health Information Technology for Economic and Clinical Health Act (the HITECH Act), has its implementing regulations just now starting to change the EHR landscape. Thankfully, the HITECH Act provides significant funding for the development of this nationwide health information technology infrastructure. Specifically, the law provides financial incentives through the Medicare program to encourage physicians and hospitals to adopt and use certified EHR .
The keys to the EHR kingdom turn on whether you are actually a “meaningful EHR user”. Although some guidance was provided by a HHS working committee in June 2009, and further guidance in the form of a proposed rule was provided on December 30, 2009, a final rule on the definition has yet to be delivered.
According to the HHS December 30, 2009 Press Release, “The proposed rule would define the term “meaningful EHR user” as an eligible professional or eligible hospital that, during the specified reporting period, demonstrates meaningful use of certified EHR technology in a form and manner consistent with certain objectives and measures presented in the regulation. These objectives and measures would include use of certified EHR technology in a manner that improves quality, safety, and efficiency of health care delivery, reduces health care disparities, engages patients and families, improves care coordination, improves population and public health, and ensures adequate privacy and security protections for personal health information.”
What exactly does this nested and partially circular definition mean to someone looking for guidance? Not very much. Until such time as the term “meaningful EHR user” is finalized, the door remains open as to just how far-reaching the HITECH Act will become.
Down 38.49% in 2008, the S&P 500 experienced its worst performance in over seven decades. In 2009, the S&P 500 bounced back and was up 19.67%. Notworthy S&P news for small business owners, however, is the fact that CIT Group was booted from the index when it filed for bankruptcy – the 5th largest in U.S. history. CIT was a HUGE lender to small businesses around the country. As CIT’s marketing materials put it, “For more than 100 years, CIT has provided capital to small business and middle market customers. These sectors continue to play a vital role in the US economy and in overall employment, representing more than 90 million jobs.”
Although the bankruptcy was a quick “pre-packaged” filing that had little real impact on its day-to-day operations, the impact on small business remains to be seen given the new shareholders of the company will be debtors, i.e., large financial institutions, and the most recent board members have a financial pedigree that favors big business interests.
It should come as no surprise that our current deep recession has been boosting corporate litigation. According to a CFO article published earlier in the year, “[l]egal wrangling is erupting across the board as aggrieved plaintiffs battle over breached labor contracts, unwarranted executive layoffs, dubious financial disclosures, broken supply chains, ailing strategic partnerships, ravaged 401(k) plans, unjust competitive practices, intellectual-property infringements, and curtailed credit lines.” In fact, New York State’s courts will close out 2009 with 4.7 million cases – the highest tally ever – so the general litigation climate could probably not be any worse.
Finding ways to cost-effectively manage this uptick in litigation can be a great challenge for shrinking or non-existent in-house departments. You should tap into your existing service professionals. It is never too late to use your existing providers – whether in insurance, law or accounting – to assess and implement loss control and prevention techniques and initiatives, advocate on your behalf with claims adjusters regarding existing claims, and coordinate existing litigation with outside counsel. Much of this work should be included in your current service contracts or should be at a minimal additional charge.