In this brave new world of health information privacy, many industry experts and healthcare organizations have emphasized the need to secure portable electronic devices such as laptops, issued to employees. But a recently published survey conducted by Cisco mConcierge appears to indicate that personal smartphones, increasingly used by employees for work purposes as part of "Bring Your Own Device" (BYOD) programs, may present a more significant privacy threat than previously thought.

According to the survey, 89 percent of healthcare workers use their personal smartphones for work purposes -- a higher percentage than all other industries surveyed except for education and technology. But 41 percent of these healthcare workers don't use a password to secure their personal device. Additionally, 53 percent reported accessing unsecured wi-fi networks using their personal smartphone, and 48 percent either hadn't disabled Bluetooth discoverable mode or didn't know if their device was discoverable. And if a security issue were to arise, 86 percent of workers said their employers would be unable to remotely wipe data from their personal smartphone. Considering how easily smartphones can be used to receive and transmit large volumes of electronic protected health information (ePHI) and how often personal smartphones are lost or stolen, healthcare organizations that utilize BYOD programs without adopting appropriate security measures could be creating a serious privacy risk.

Recommendations

• Evaluate personal smartphone risks as part of your organization's risk analysis. Under the Security Rule, covered entities must conduct an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity and availability of ePHI. Recent comments by Leon Rodriguez, Director of the U.S. Department of Health and Human Services Office for Civil Rights (OCR), indicate that deficiencies in an organization's risk analysis will be a top enforcement priority under OCR's upcoming Compliance Audit program, set to begin in October, 2013. If a covered entity utilizes a BYOD program, its risk analysis should evaluate the personal mobile device security issues identified in the survey, such as the risk of loss, theft or unauthorized access to ePHI stored on a personal device.
• Require encryption for personal smartphones used as part of a BYOD program. Under the Security Rule's Transmission Security standard, covered entities must implement technical security measures to guard against unauthorized access to ePHI transmitted over an electronic communications network (such as a cell phone network). To meet this standard, covered entities are required to either implement encryption for personal mobile devices if reasonable and appropriate or, if encryption is not reasonable and appropriate, select an alternative and justify the decision through appropriate documentation.
• Mandate password protection as a prerequisite for participation in a BYOD program. Requiring passwords as a prerequisite for participating in a BYOD program is a simple and inexpensive way to encourage protection for personal smartphones in lieu of encryption.
• Require installation of remote wiping software and/or lost phone location apps. Requiring employees in BYOD programs to install remote wiping software and lost phone location apps on their smartphones can help protect against unauthorized access to data.
• Educate and train employees on smartphone security issues and strategies to prevent loss or theft. The survey shows that many workers may not be fully aware of the security risks presented by unsecured wi-fi networks and Bluetooth discoverability. Providing basic workforce education and training on the common risks associated with personal smartphone use for work purposes, as well as basic security safeguards that users can implement to protect work information stored on smartphones, is a simple and cost-effective way to help prevent a serious data security incident.

OCR's Compliance Audit program is scheduled to begin in October, 2013, and covered entities that have not conducted an appropriate risk analysis and/or implemented appropriate security measures to address BYOD program risks may be risking potential liability. If you are concerned about your organization's BYOD program, risk analysis, encryption policy, OCR's upcoming Compliance Audit program or related issues, please contact Lynn Sessions, lsessions@bakerlaw.com or 713.646.1352; or Theodore J. Kobus III, tkobus@bakerlaw.com or 212.271.1504.