Opt-In Email Encryption is too Risky for HIPAA Compliance
A majority of companies and hospitals that offer email encryption for HIPAA compliance allow senders to “opt in” to encryption on a message-by-message basis. E.g. if the user “does nothing special” then the email will be sent in the normal/insecure manner of email in general. If the sender explicitly checks a box or adds some special content to the body or subject of the message, then it is encrypted and HIPAA-compliant.
Opt-in encryption is desirable as it is “easy” … end users don’t want any extra work and don’t want encryption requirements to bog them down, especially if most of their messages do not contain PHI. It is “good for usability” and thus easy to sell.
However, opt-in encryption is a very bad idea with the inception of the HIPAA Omnibus rule. Opt-in imposes a large amount of risk on an organization, which grows exponentially with the size of the organization.
What is special about the HIPAA Omnibus Rule that changes the game?
There are two provisions of the Omnibus HIPAA rule that come into play:
- Reporting: Previously, you only had to report a breach if there was a significant risk that it would be damaging to the patient. Now, you have to report every breach, no matter how small, unless special conditions are met. Read more details.
- Penalties: The maximum penalty for a single violation has been raised to $50,000 and enforcement is planned to be strict and pervasive.
With regards to opt-in email security:
If you accidentally send a single email message containing ePHI without encryption, that is likely a reportable breach.
The down side of Opt-In Encryption
No one argues that “opt in” email encryption is user friendly and takes some of the bite out of the pain of enforced encryption. After all, who is in a better position than the sender to specify which messages contain PHI and which do not?
However, with opt in encryption, it is so very easy for PHI-laden messages to go out without encryption because:
- Typo! The sender mistypes the “code” that is supposed to trigger encryption and thus no encryption happens
- Distraction! The sender was distracted or very busy and forgot to specify that encryption was needed
- Education: The sender did not fully understand what is PHI or the sender does not understand security or care about it very much and so doesn’t bother or remember how to take extra steps to ensure full compliance
- Inconvenience: The sender is sending a message to a recipient who doesn’t like to deal with encryption … and so the sender “skip it”.
- People are very busy and multitasking and distraction happens.
- It is hard to avoid a typo once in a while if you are in a hurry — or even if you are not.
- The more people in your organization, the more likely you are to have issues with education and the more likely the other conditions are to occur.
- If you have to report errant emails as breaches, then all of a sudden you need to be monitoring these as well … and who is going to be doing that? Does your system even allow you that ability?
One alternative is LuxSci’s Second-Generation Opt In Email Encryption which goes you the best of both worlds — ease of use and low risk.
Send Everything Encrypted?
A better solution: Email Encryption Opt Out
- All messages are encrypted by default.
- If the sender “does nothing”, then the message is encrypted.
- All PHI is sent encrypted.
- Messages can be sent in the “regular” way if the sender enters special text (like “insecure” or “nophi” in the subject or if the sender checks a box … so regular email can go out in a regular way.
- The sender must consciously certify that a message does not contain PHI before it will go insecurely. This is much safer in terms of risk as it is much less likely that the sender will send PHI insecurely unless the sender is lacking HIPAA education or being malicious.
- If the sender makes a typo in the “opt out” code, the system errors on the side of security…. the message will be encrypted.
LuxSci’s Opt Out Encryption Solution
- Allowing you to choose what subject line text triggers no encryption.
- Removing the special extra subject line text so the recipient does not see it (making it more transparent).
- Allowing you to use just a checkbox (and confirmation dialog) in WebMail and Outlook to disable encryption.
- Logging the sending of all unencrypted messages for auditing purposes.
- Sending copies of all unencrypted messages to a special auditor email address for your review.
For more details, see: HIPAA Compliant Email – You Decide Which Messages Need Encryption
- How to breach your HIPAA-compliant email in 5 minutes while getting coffee
- Are you Minimizing your Risk by using the Next Generation of Opt In Email Encryption?
- How to Setup HIPAA Mutual Consent for Insecure Email at LuxSci
- HIPAA Compliant Email – You Decide Which Messages Need Encryption
- Google Apps HIPAA Compliance Gotchas: Email encryption not included and higher price