How To Analyze A HIPAA Breach

by Fisher Phillips
Contact

(Healthcare Update, No. 1, February 2014)

The Health Information Technology for Economic and Clinical Health Act (HITECH Act) and subsequent regulations have changed several aspects of compliance with HIPAA, including the way covered entities should think about misuses of Protected Health Information (PHI).

When a misuse of PHI occurs, HIPAA requires covered entities to conduct a thorough, good-faith analysis to determine whether the misuse rises to the level of a breach. A “breach” is the unauthorized acquisition, access, use, or disclosure of unsecured PHI which compromises the security or privacy of such information.

Depending on the severity of the breach, covered entities could face reporting and notification requirements that include notifying the Department of Health and Human Services (HHS), affected individuals, and even the media. For this reason, whether a misuse rises to the level of a breach requires careful examination. In brief, a breach contains the following elements: 1) an unauthorized acquisition, access, use, or disclosure; 2) of unsecured PHI; 3) resulting in an impermissible disclosure under the privacy rule; 4) that compromises the security or privacy of such PHI; and 5) to which an exception does not apply.

Under the final regulations issued by HHS, which became effective on September 23, 2013, the concept of what “compromises” the security or privacy of PHI has changed. Previously, a breach occurred only if there was a significant risk of financial, reputational, or other harm to the individual. But the 2013 final regulations remove this “harm standard” and instead require a four-part risk assessment intended to focus on the risk that PHI has been compromised in a more objective way.

The 2013 regulations provide that a covered entity must presume that an acquisition, access, use, or disclosure of PHI in violation of the privacy rule is a breach. This presumption holds unless the covered entity demonstrates that there is a “low probability” that the PHI has been compromised based on a risk assessment which considers at least the following factors: 1) the nature and extent of the PHI involved, including the types of identifiers and the likelihood of re-identification, 2) the unauthorized person who used the PHI or to whom the disclosure was made, 3) whether the PHI was actually acquired or viewed, and 4) the extent to which the risk to the PHI has been mitigated.

Here’s a closer look at how these are defined:

The nature and extent of the PHI involved

Based on HHS guidance, covered entities should consider whether the disclosure involved PHI that is of a sensitive nature, including the types of identifiers and the likelihood of re-identification. Social security numbers would be considered sensitive items, whereas a city or state identifier would not be as sensitive. Entities should consider the likelihood that someone could suffer financial or reputational harm based on the information to determine its level of sensitivity.

The unauthorized person who used, accessed, or received the PHI

Consider whether the unauthorized person is trained in HIPAA compliance, has obligations to protect the privacy and security of the information, has a track record of protecting similar information, and can be obligated to return it. HHS emphasizes that this factor should be considered in combination with the first factor regarding the risk of re-identification.

Whether the PHI was actually acquired or viewed

Analyze whether the PHI was actually acquired or viewed or, alternatively, if only the opportunity existed for the information to be acquired or viewed. Entities may have the technology to confirm that information was unviewed, or they may be able to lock a lost cell phone or destroy files remotely in order to protect themselves under this factor.

The extent to which the risk to the PHI has been mitigated

Finally, covered entities must evaluate the extent to which the risk to the PHI has been mitigated. If the PHI is no longer in the entity’s possession, consider factors such as how easily it can be duplicated.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.