HIPAA Breach Evaluation and Reporting - What Qualifies as a Reportable Breach and how to Report It - Webinar (Recorded)

Overview: The HIPAA Breach Notification Rule has been in effect since 2010 and has been significantly modified in 2013. We will discuss the origins of the rule and how it works, including interactions with other HIPAA rules and penalties for violations. Whenever there may be a privacy issue involving Protected Health Information, there may be a reportable breach under the HIPAA regulations. Not all privacy violations are reportable breaches, though, so it is essential to have a good process for evaluating incidents to see if they have resulted in a reportable breach.

Any privacy rule violation that results in an acquisition, access, use, or disclosure of PHI in violation of the HIPAA Privacy Rule may be a breach, unless the incident is one of the defined exceptions from the definition. A breach is reportable unless the information was secured or destroyed in the incident, or unless a risk analysis shows that there is a low probability of compromise of the information, based on at least four factors defined in the rules. We will examine how to determine if a privacy violation is potentially a breach according to the definition, and then describe the subsequent steps in the evaluation, if it is determined that the definition has been met.

We will discuss the exceptions to the breach definition for inadvertent internal uses, or when it can be determined that the information could not be retained in any way by the receiving party. Entities can avoid notification if information has been encrypted according to Federal standards. We will cover the guidance from the US Department of Health and Human Services that shows how to encrypt so as to prevent the need for notification in the event of lost data. Failing that, a risk analysis can be conducted to determine the probability of compromise of the information, considering four factors: what the data is and how well identified it is, to whom was it released and do they have obligations to protect the information, whether or not the information actually exposed, and whether or not the incident has been mitigated properly. However, it must be noted that any compromise of the information by Ransomware that denies access or control of your information should be treated as a reportable breach.

We will discuss how to create the right breach notification policy for your organization and how to follow through when an incident occurs.In addition, a policy framework to help establish good security practices is presented. We will help you understand what isn't a breach and under what circumstances you don't have to consider breach notification. You'll find out how to report the smaller breaches (less than 500 individuals), and you'll know why you want to avoid a breach involving more than 500 individuals - media notices, Web site notices, and immediate notification of HHS, including posting on the HHS breach notification "wall of shame" on the Web.

We will explain, based on historical analysis of reported breaches, what measures must be taken today to protect information from the most common threats, as well as discuss information security trends and explain what kinds of efforts will need to be undertaken in the future to protect the security of PHI.

Why should you Attend: Breaches of Protected Health Information are becoming more and more common, and can be a result of a variety of circumstances, from words spoken too loudly in a public setting, to a lost thumb drive full of medical records, to files being held for ransom by hackers. Any violation of the HIPAA Privacy Rule may be a reportable breach under the HIPAA Breach Notification rules, requiring notification of individuals and HHS when information security is breached. Any incident involving a HIPAA issue must be evaluated to see if it is reportable, and any decisions or actions must be fully documented.

There is a number of steps that must be taken to determine if an incident is a breach, and whether or not that breach is reportable. Determining whether to report or not is not necessarily straightforward, but there are guidelines to follow to help at every step of the way. Even Ransomware attacks by hackers may be reportable, if you lose control of your data and don't know exactly what happened. If the evaluation of necessity to report is not done correctly, you may not make the right decisions about reporting and be subject to penalties for non-compliance upon an investigation of a breach by HHS. Breach investigations, even for small breaches, are a new priority at HHS, and the HHS regional offices are taking on the job of looking into small breaches (affecting under 500 individuals), especially when there have been multiple breaches or repeated similar breaches.

Penalties for non-compliance can be up to $50,000 per day in cases of willful negligence, so it is essential to evaluate incidents to see if they are reportable breaches, and act properly on the evaluation.

Areas Covered in the Session:

The definition of a Breach under HIPAA
Evaluating the Privacy violation
Reviewing the exceptions to the definition of a breach
What is good enough encryption according to the rules
Performing the Risk Analysis to determine the necessity to report
Ransomware and Breaches - When to Report
Avoiding Breaches
The most common causes of breaches
Reporting breaches to HHS and the individuals
Reporting breaches to the press and other agencies
Documenting your analysis and decisions