Health Information Management

HIPAA Q&A: You've got questions. We've got answers!

HIM-HIPAA Insider, September 14, 2015

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Q: Can you explain the difference between a security incident and a data breach? I feel like there's a lot of confusion around this. What are the legal requirements between the two for a healthcare provider or a business associate?

A: A breach is a subset of security incidents. For example, if a laptop is stolen and it is encrypted, that's a security incident but not a breach. Another example would be a hacker attempting to hack a firewall but failing—again, that would be a security incident and not a breach.

A breach occurs when the data is compromised. The Breach Notification Rule does not include a definition of what "compromised" means, but it does describe what represents a breach. A breach is the unauthorized disclosure of unsecure electronic or non-electronic PHI. If the PHI is electronic, it's not secure if it's not encrypted at the level set by the National Institute of Standards and Technology or not totally and completely destroyed. If the PHI is non-electronic and it's not totally and completely destroyed, it's not secure.

If a breach of unsecure PHI occurs, business associates are required to report the breach to the CE as soon as feasible but no later than 60 calendar days. The CE has the responsibility of assuming the breach is reportable initially, conducting the four-factor risk assessment, and, if necessary, notifying individuals and the OCR as soon as feasible but no later than 60 calendar days.

Remember that most states have enacted breach notification laws, and some are more stringent than HIPAA. Where state laws are more stringent than HIPAA—in other words, where they expand the breach response and reporting requirements—state law preempts HIPAA.

Editor’s note: Chris Apgar, CISSP, president of Apgar & Associates, LLC, in Portland, Oregon, answered this question for HCPro’s Briefings on HIPAA newsletter. This information does not constitute legal advice. Consult legal counsel for answers to specific privacy and security questions.

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