Guest Blogger: Jan McDavid is General Counsel and Compliance Officer at HealthPort, a Release of Information and Audit Management Technology company. You can read more of Jan’s posts on the HealthPort blog.
The following is a 4 part series of blog posts on the HIPAA Breach Notification Rules.
Eight thousand providers. One question. When do we notify patients of a breach? I hear this question several times a week from all types of covered entities; hospitals, clinics and physician offices. Many are confused or misinformed about the answer. Furthermore, real world experience varies dramatically. Some providers notify everyone. Others notify only when necessary. What’s the answer?
First and foremost, you do not have to notify the patient each and every time there is a breach of protected health information (PHI). The law requires notification only if you meet one of two conditions:
1) When 500 or more records have been breached at the same time, you must notify the patients involved, OR
2) When you as the covered entity (CE) have conducted the required “risk analysis” and determined the patient (or patients) could suffer substantial financial or reputational harm.
The issue with the second requirement is the term “substantial”. It is very subjective and not fully defined within the rules. Conducting a risk analysis and determining the extent would appear to be a classic case of the fox guarding the hen house. As such, many observers expected hospitals NOT to notify, or perhaps under-notify, as the cost of a breach can be very high — both direct costs and the soft cost of reputational harm to the CE. However, we see providers taking a “better safe than sorry” approach and over-notifying.
In next week’s post, we’ll cover the risks of over-notifying after a breach.