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What Is Considered a Breach of HIPAA?

What-Is-Considered-a-Breach-of-HIPAA

When it was first introduced in 1996, the Health Insurance Portability and Accountability Act [HIPAA] was intended to completely reshape the healthcare landscape, ushering it into the 21st century. In truth, its initial rollout was a failure, seeing as it lacked the teeth necessary to enforce compliance. However, over the years, the release of additional rules and measures such as HITECH have buffed up the enforcement protocols.

Today, if your business is found guilty of a breach or violation of HIPAA’s rules, you can face some stiff repercussions. Therefore, it’s crucial that you know what breaches are, the penalties for such breaches, and measures you can take to comply with HIPAA

Want to know what is considered a breach of HIPAA? Below, we’ll cover this and more so that your business and its private data is safe and secure.

 

What is Considered a Breach of HIPAA

According to HHS, a breach of HIPAA typically involves the:

Impermissible use or disclosure under the Privacy Rule that compromises the security or privacy of the protected health information.  An impermissible use or disclosure of protected health information is presumed to be a breach unless the covered entity or business associate, as applicable, demonstrates that there is a low probability that the protected health information has been compromised.

In order to determine the punishment and severity of the breach, a risk assessment must be conducted to see the extent of a covered entity’s culpability. Per the HHS, the risk assessment is based on the following factors: 

 

Assess your HIPAA / HITECH compliance

 

HIPAA Breach Notification Rule

One of the complaints about the original HIPAA rollout was that it allowed for many uses and disclosures of electronically protected health information [ePHI] without patient consent. In addition, covered entities had no obligation to notify patients about data breaches. Dr. Deborah Peel, a psychiatrist and founder of the Patient Privacy Rights Foundation wrote: 

Our existing federal privacy law is toothless. The federal government amended HIPAA in 2003, allowing more than 600,000 types of businesses and millions of their business associates to access medical records without patient consent for the “treatment, payment and operations of health-care-related activities.” To argue that medical privacy will result in higher costs and obstruct research is simply wrong. How can anything possibly be private with this type of loophole?

 

HITECH sought to remedy this issue by requiring covered entities to notify the government and the public, particularly about larger breaches. Reporting standards and requirements could be broken down by smaller and larger breaches:

 

What is PHI? 

Under HIPPA, protected health information [PHI] can be categorized as, “Any individually identifiable information relating to the past, present, or future health status of an individual that is created, collected, or transmitted, or maintained by a HIPAA-covered entity in relation to the provision of healthcare, payment for healthcare services, or use in healthcare operations (PHI healthcare business uses).” As a note, PHI only pertains to personal information involving patients or health plan members. 

According to HHS, examples of PHI include:

Common Breaches of HIPAA 

One of the most obvious and innocent reasons for a HIPAA violation simply comes down to a lack of awareness about what does or does not constitute a HIPAA violation. Therefore, it’s essential that you require regular compliance training so that employees know what they can or can’t do. 

The following list contains some of the most commonly listed HIPAA violations and breaches:

 

Penalties for Breach of HIPAA 

Through HITECH, HHS created an enforcement mechanism for HIPAA breaches and failure to address noncompliance. In order to distinguish the levels of noncompliance, HHS outlined a four-tier penalty system that looks as follows: 

Individual Civil Penalties

Employees who violate HIPAA rules can face serious Civil penalties if found guilty. According to the HIPAA Journal:

The Office for Civil Rights can impose a penalty of $100 per violation of HIPAA when an employee was unaware that he/she was violating HIPAA Rules up to a maximum of $25,000 for repeat violations. In cases of reasonable cause, the fine rises to $1,000 per violation with a maximum of $100,000 for repeat violations, for willful neglect of HIPAA Rules where the violation was corrected the fine is $10,000 and up to $250,000 for repeat violations and willful neglect with no correction carries a penalty of $50,000 per violation and up to $1.5 million for repeat violations.

 

Criminal Charges 

If the Office for Civil Rights sees conduct, whether by business or employee, that it considers being malicious and criminal, they can refer the case to the Department of Justice. Similar to the penalty tiers, punishment is based on the extent to which an employee knew that they were violating HIPAA rules. This might look like the following:

 

Complying with HIPAA 

Breaches of HIPAA can result in a loss of patient trust, damage to your company’s reputation, and a host of fines and fees. Therefore, if you wish to protect your business, employees, and patients, it’s crucial that you take all proper measures to ensure that you are acting in accordance with the rules of HIPAA.

RSI Security has worked with countless companies to ensure that their operations and employees are compliant with HIPAA and HITECH. We are a full-service HIPAA Compliance Assessor and Advisory. We have spent more than a decade providing employee training, oversight, patient data security assessments, and prescriptive recommendations. So, if you want an expert on your side, we’re here to help! 

 

 

Download Our Complete Guide to Navigating Healthcare Compliance Whitepaper

Not sure if your HIPAA or healthcare compliance efforts are up to snuff? Unsure about where to even start? Download RSI Security’s comprehensive guide to navigating the HIPAA and healthcare compliance labyrinth. Upon filling out this brief form you will receive the whitepaper via email.

 

Sources 

HHS. Breach Notification Rule. https://www.hhs.gov/hipaa/for-professionals/breach-notification/index.html#targetText=Definition%20of%20Breach,of%20the%20protected%20health%20information.

Peel, D. Healthcare IT News. Privacy and Health Research can Co-Exist. (2006). https://www.healthcareitnews.com/news/peel-privacy-and-health-research-can-co-exist

HIPAA Journal. What is Considered Protected Health Information Under HIPAA? (2018). https://www.hipaajournal.com/what-is-considered-protected-health-information-under-hipaa/

HHS. Guidance Regarding Methods for De-Identification of Protected Health Information in Accordance with HIPAA’s Privacy Rule. https://www.hhs.gov/hipaa/for-professionals/privacy/special-topics/de-identification/index.html

NIST. Guidelines for Managing the Security of Mobile Devices in Enterprise. (2018). https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-124r1.pdf

HIPAA Journal. What is the Civil Penalty for Knowingly Violating HIPAA? (2018). https://www.hipaajournal.com/civil-penalty-for-knowingly-violating-hipaa/#targetText=Criminal%20Charges%20for%20HIPAA%20Violations&targetText=At%20the%20lowest%20level%2C%20a,up%20to%20one%20year%20imprisonment.&targetText=In%20addition%20to%20the%20punishment,prison%20term%20of%202%20years.

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