The health care sector is increasingly victimized by targeted cyberattacks. The stakes are uniquely high when a health system finds itself at the center of a cyberattack; the consequences can be severe for both the health system and the patients it treats and serves. The problem is well-known, yet a fix has been elusive. Current laws neither sufficiently protect health systems and patients from these attacks nor adequately compensate those harmed. This analysis explores the deficiencies in both current and proposed legislation and explores what more is required to address the growing risks that accompany cyberattacks on health systems.

Cyberattack Basics.

A cyber incident or cyberattack is “an event occurring through a computer network that actually or imminently jeopardizes the integrity, confidentiality, or availability of computers, information or communications systems [or] physical or virtual infrastructure controlled by computers or information systems…” Cyberattack perpetrators seek health information valuable on the black market; such information “contains details that can be used to access bank accounts or obtain prescriptions for controlled substances.”

Between 2018 and 2022, there was a 107% increase in the number of data breaches reported to the Office for Civil Rights (OCR) that affected 500 or more individuals. The number and size of data breaches steadily rose from 2021 to 2023, with 45.9 million records breached in 2021 and 133 million records breached or otherwise impermissibly obtained in 2023.

It is not surprising that recent years have seen numerous, far-reaching health care cyberattacks. The Kaiser Foundation Health Plan, Inc. suffered a cyberattack in 2024 that resulted in a breach of over 13 million records. In 2023, Welltok, Inc. was the victim of a cyberattack resulting in over 14 million records were impermissibly exposed. The top of the list cyberattack is the attack that targeted Change Healthcare, Inc.; over 100 million records were breached.

Holes within Current Laws and Guidance.

Current laws and guidance have been ineffective in quelling the rise of cyberattacks. The Department of Health and Human Services (HHS) has stressed that “there are measures known to be effective to prevent the introduction of ransomware and to recover from a ransomware attack.”

Under the Health Insurance Portability and Accountability Act’s (HIPAA) Security Rule, covered entities and business associates must implement measures and procedures “that they believe are reasonable and appropriate to respond to malware and other security incidents.” Although HIPAA is a federal law to which covered entities and business associates must follow, the rise in cyberattacks indicates that HIPAA may need strengthening because cyberattacks persist.

The persistence of successful cyberattacks makes clear that guidance, though helpful, is not enough: legislation is necessary if true reform is the ultimate goal. Because “health care and public health sector assets are increasingly the targets of malicious cyberattacks,” the Healthcare Cybersecurity Act (HCA) of 2022 was an effort to mitigate this prevalent problem. The 2022 HCA was meant to introduce reforms that would revitalize the health care sector. It did not pass, but it was reintroduced in 2024 with additions.

Originally known as Senate Bill 3904, the 2022 HCA requires the Cybersecurity and Infrastructure Security Agency (CISA) to coordinate with HHS to improve cybersecurity in the health care sector. The coordination between CISA and HHS would develop products to specifically meet the needs of health care entities, as well as share information that relates to “cyber threat indicators and appropriate defensive measures.” The Secretary of HHS would be required to provide training to health care and public health asset owners and operators, particularly on cybersecurity risks and how to mitigate them.

The 2022 HCA also emphasized that the Secretary of HHS must update the Health Care and Public Health Sector Specific Plan (Plan); the Plan would include an analysis of the impact of cybersecurity risks, an evaluation of the challenges that the health care sector faces, an evaluation regarding best practices, an assessment of relevant cybersecurity workforce shortages, cybersecurity challenges related to the COVID-19 public health emergency, and an evaluation of the most timely ways that CISA and HHS can communicate and establish recommendations to the health care sector.

Proposed Legislation Will Not be Enough to Safeguard Health Systems.

On July 11, 2024, Senators Jacky Rosen (D-NY), Todd Young (R-IN), and Angus King (I-ME) introduced the Healthcare Cybersecurity Act of 2024. When announcing the bipartisan bill, the Senators cited the Change Healthcare cyberattack as motivation behind introduction of the bill, emphasizing that the attack severely interrupted the functionality of hospitals. The 2024 HCA adds a few provisions to supplant the 2022 HCA.

First, the 2024 HCA calls for the appointment of a liaison with cybersecurity qualifications and expertise. The liaison would be charged with numerous responsibilities, including offering technical assistance on best practices relating to cybersecurity, facilitating cyber threat information sharing, and coordinating with CISA and HHS during cybersecurity incidents, among other related tasks. The liaison must “submit a report that describes the activities undertaken to improve cybersecurity coordination” between CISA and HHS. Ultimately, the liaison is meant to help CISA and HHS coordinate with one another to be able to respond to cyberattacks quickly.

Second, the 2024 HCA would require that the Director of CISA establish criteria to determine what constitutes a high-risk covered asset. A covered asset under the HCA of 2024 is a “healthcare and public health sector asset, including technologies, services, and utilities.” In this context, a high-risk covered asset would be a healthcare asset that may be susceptible to high levels of harm due to its sensitive nature. Further, the Secretary of HHS must develop a list of high-risk covered assets for HHS to use when “prioritiz[ing] resource allocation to high-risk covered assets to bolster cyber resilience.” This section is meant to identify high-risk covered assets so that not only is the federal government aware of their status, but also so that the high-risk covered assets may be prioritized in the event of a cyberattack.

Although some vouch that the 2024 HCA is a “critical step forward in safeguarding our nation’s healthcare infrastructure,” others are unconvinced that the HCA will be as impactful as hoped. Many believe that the 2024 HCA is redundant of actions that are already being undertaken. Steve Cagle, CEO of health care cybersecurity firm, Clearwater, stated that former President Biden’s “National Security Memorandum on Critical Infrastructure, Presidential Policy Directive 41, HHS’s 405d program, and cybersecurity training already offered” all achieve the same initiatives that the 2024 HCA attempts to accomplish. Some argue that what is truly needed is “accountability, email protection, vulnerability management, risk analysis, and experienced security staff to guide programs.”

It seems that those who do not have faith in positive effects of the 2024 HCA argue that, from small-scale organizations to large-scale corporations, basic security controls must be in place first. Without basic controls, federal legislation may not positively contribute to avoiding cyberattacks or even mitigating the risks of cyberattacks.

Conclusion: What Will Work? Will Anything Work?

The health care sector continues to fall victim to the steady rise of cyberattacks that not only disrupt operations, but also affect the patients served. Although the 2024 HCA may be a sign of progress, its impact may be limited without implementation of basic security controls across all sizes of health systems. The Change Healthcare cyberattack illustrates that even a large corporation with seemingly robust resources is vulnerable if it relies on inadequate, reactive security measures.

Although the 2024 HCA strives to curate better strategies in response to cyberattacks, a shift towards proactive security measures within health systems is required to effectuate positive change. Instead of reacting to cyberattacks when they occur, health systems should engage in proactive cybersecurity, where they invest to improve their cybersecurity before an attack occurs. Reactive cybersecurity measures make it more likely that a cyberattack will be successful since adequate security measures are not in place prior to the cyberattack. On the other hand, proactive cybersecurity initiatives anticipate future issues so that an entity is prepared when a cyberattack occurs. Specific examples of proactive cybersecurity measures include workforce training, ongoing risk assessments, third-party risk management, and more. Current law focuses too much on reacting to cyberattacks rather than preventing them. If future law shifts toward a proactive approach, it could better equip health systems to prevent cyberattacks, ultimately improving patient safety and trust. Until foundational measures are addressed, and proactive cybersecurity initiatives are implemented, neither laws nor initiatives, existing or proposed, will be adequate to protect the vulnerable atmosphere that engulfs health systems from the sphere of cyberattacks.

Under the banner of anti-discrimination, recently established advocacy group Do No Harm (DNH) seeks to eliminate diversity initiatives in healthcare. DNH believes that diversity, equity, and inclusion (DEI) practices are plain discrimination against certain demographics of patients, medical students, and healthcare workers, which ultimately harms patient health outcomes. This belief contradicts current healthcare and public health goals of utilizing diversity-conscious practices to promote equity and mitigate disparities in healthcare. Legitimization of DNH’s mission would further politicize equity in medicine and frustrate preexisting efforts to eliminate health disparities.

Background

Retired physician Stanley Goldfarb founded DNH in 2022 to fight for “the elimination of all discrimination in healthcare.” As a national association comprised of like-minded patients, medical professionals, and policymakers, DNH primarily utilizes media, lobbying, and litigation to target pediatric gender-affirming care and DEI practices.

DNH pursues litigation over initiatives like diversity fellowship scholarships, DEI hiring practices, and clinical care practices specialized to meet the needs of racial and ethnic minorities. DNH believes that tailoring healthcare opportunities to racial minorities, women, and other minority groups discriminates against all other “non-minority” groups. DNH grounds its arguments in various combined readings of Title VI of the Civil Rights Act of 1964, Section 1557 of the Affordable Care Act (ACA), and the Equal Protection Clause of the Fourteenth Amendment. These federal provisions prohibit discrimination on the basis of race, color, ethnicity, and sex, and typically resolve cases involving discrimination against a racial, religious, or gender minority. Spurred by changes implemented by the U.S. Supreme Court, DNH wants to use these federal provisions to protect non-minority groups from discrimination.

In the 2023 decision from SFFA v. Harvard, SCOTUS said that “[e]liminating racial discrimination means eliminating all of it”, reinforcing a statement from an 1886 case that the Equal Protection Clause applies “without regard to any difference of race, of color, or of nationality”. The Court held that colleges and universities are now prohibited from considering race as a factor in admissions. After this decision, groups like DNH began filing claims with intent to expand the scope of SFFA v. Harvard to non-university parties, including medical schools and healthcare workplaces.

Like other industries, healthcare evolved over time and gradually implemented diversity-conscious practices to address identified disparities. Medical schools and healthcare employers established policies and opportunities for traditionally underrepresented groups to enter the medical field. Proponents of health equity believed DEI would lead to more accurate, bias-checked medical opinions and treatment decisions, and that a diverse range of physicians caring for a diverse patient population would improve patients’ overall experience and trust in the healthcare system.

DNH discredits diversity initiatives in its own compiled report, which discusses a lack of hard evidence that diversity-conscious practices improve clinical outcomes and “debunks” the methodology of select pro-DEI research. Advocates of diversity initiatives defend the practice by pointing to records of positive subjective patient experiences and a social need to remedy historical inequity in the profession. DNH opposes those exact ideas: first, that diversity in the healthcare workforce results in improved patient health outcomes; and second, that medicine is a practice where equal opportunity matters more than, or as much as, training “the best and the brightest”.

Recent Action by Do No Harm

In March 2024, House Representative Greg Murphy introduced the EDUCATE Act, which proposes a ban on federal funding for medical schools that “force students or faculty to adopt specific beliefs, discriminate based on race or ethnicity, or have diversity, equity, and inclusion (DEI) offices or any functional equivalent.” DNH founder Dr. Goldfarb supported the Act, saying, “If we fail to stop [DEI ideology in medical schools], we risk a generation of physicians ill-equipped to meet the needs of their patients.” Endorsement of the EDUCATE Act reflects DNH’s fear that medical schools are prioritizing diversity and equity over quality medical training, to the detriment of patient health outcomes. The status of the Act has not changed since its referral to the Committee on Health, Education, Labor, and Pensions.

In June 2024, DNH filed a complaint in federal court, challenging a policy of the American Association of University Women (AAUW) that limited eligibility for its fellowship program to women applicants of ethnic minority groups. The court dismissed the case after AAUW agreed to drop race from criteria for consideration of the fellowship. In its August 2024 statement, AAUW acknowledged that “recent Supreme Court decisions have changed how we must fight for equity”, likely referring to SFFA v. Harvard.

In August 2024, DNH filed a complaint with the U.S. Department of Health and Human Services, Office for Civil Rights (OCR), urging an investigation into the Cleveland Clinic. Since 2019, Cleveland Clinic’s Minority Stroke Program“tailor[ed] treatment and prevention services to Black and Latino patients, including medical referrals and post-stroke care” to address the disparity that “Black men and women are at least two times as likely as white Americans to die from strokes.” DNH alleged that the minority-focused programming violates non-discrimination mandates under Title VI and Section 1557 of the ACA. In September 2024, OCR announced it would investigate the complaint.

Discussion

DNH’s litigation efforts against pro-DEI organizations indicate that any program with DEI initiatives is susceptible to equal protection challenges and discrimination claims. Data, studies, and research in support of one side or the other are frequently met with scrutiny by the opposing side. For example, DNH itself lauded research that “debunked” an influential study on racial concordance and newborn mortality that was often cited by scholars and administrators to justify DEI-conscious admissions at medical schools. The public is adversely affected by apparent discord among medical scholars and health policymakers, with one study attributing a lack of trust in public health agencies to perceptions of political influence within the agency, which risks undermining public health efforts. Further politicization of equity and other healthcare goals frustrates actual progress towards improving health for all.

Updates are slow in this area of health, law, and equity. The ongoing focus and frequency of DNH activity should put organizations on notice to carefully consider existing DEI practices and prepare to either defend or drop diversity-conscious language from any program goals and requirements. Choosing to defend risks the possibility of a court applying the SFFA v. Harvard prohibition on race considerations to this specific healthcare context, or even extending the reach of SFFA v. Harvard to DEI-centered fellowships, research programs, and pipeline programs in every industry, not just healthcare. No court has definitively ruled on the merits of a claim alleging discriminatory diversity-conscious healthcare and medical school programming. Like the AAUW case described above, most cases are dismissed for procedural reasons without judicial comment on discrimination and DEI. However, every lawsuit DNH files against pro-DEI organizations is a step in that direction.

Here in Illinois, DNH has not filed any lawsuits alleging discriminatory practices by healthcare corporations and medical schools. In August 2022, DNH did file an administrative complaint with the Department of Education, Office of Civil Rights (Chicago OCR) against Loyola University Chicago Stritch School of Medicine (Loyola), calling out an internship program that “intended to encourage medical students from racial and ethnic groups that are underrepresented in medicine to consider pursuing a career in academic surgery” in violation of Title VI. Eligibility requirements for the program included the criterion of “African American/Black, Hispanic/Latinx, American Indian/Alaska Native, Native Hawaiian/Pacific Islander”. Chicago OCR dropped its investigation in February 2023 because Loyola removed the contested criterion from its eligibility requirements. Now, the program “invites outstanding students who self-identify as underrepresented in Surgery from a social, economic, or educational perspective” to apply.

In October 2024, DNH Senior Fellow Mark Perry submitted a complaint to Chicago OCR on behalf of DNH against Midwestern University over its dental school scholarship program, which is open to students from “underrepresented minority groups”. According to Perry, the program violates Title VI and is “not legal”. Other than a November 2024 news clip on the DNH site, no further updates are currently available on this matter. Perhaps like Loyola and the AAUW, Midwestern University will eventually rephrase or omit the challenged language from its program requirements.

Other than scholarship programs, minority-focused clinical care and research programs are prime targets for DNH attention. The University of Illinois at Chicago College of Medicine currently runs the Institute for Minority Health Research, which aims to promote research and other interventions to “improve the health of vulnerable minority populations living locally, nationally, and internationally.” DNH could attack the Institute for its apparent catering to “minority populations” over non-minorities, similar to its argument in the Cleveland Clinic investigation.

DNH continues to submit complaints against organizations with DEI practices, condemning claims that minority representation in healthcare contributes to improved patient health outcomes. By pursuing its goal of ending discrimination against non-minorities in healthcare, DNH is polarizing what could be a collaborative discussion on the optimal ways to improve health. “Equity” is now a politicized term rather than a fundamental principle of health and medicine. If any judicial or legislative action legitimizes the goals of DNH and specifically applies SFFA v. Harvard and equal protection to this healthcare context, DEI healthcare and medical programs risk total invalidation —something to keep an eye on in the upcoming years.