New Health Security Breach Notification Rules

NEW HEALTH SECURITY BREACH NOTIFICATION RULES
Interim final rules implementing security breach notification requirements for personal health
data released by the Department of Health and Human Services (HHS) create new compliance
obligations. The new HHS rule became effective on September 23, 2009.

The HHS breach notification rule governs security breaches involving information maintained by
HIPAA-covered entities or business associates of HIPAA-covered entities. Business associates,
in particular, will want to familiarize themselves with the new requirements. The HHS rule
requires notification in the event of a breach involving unsecured data. The rule requires notice
to affected individuals within 60 calendar days following discovery of the breach and, in the
event that more than 500 individuals are affected, notice to the media.

Many entities that use or maintain personal health information have longstanding security
measures in place in order to comply with the HIPAA security rule. However, data that is
secured in accordance with the HIPAA security rule still may be breached in a manner that
would trigger the notification obligations required under the new rule. To the extent that the
HIPAA security rule and the HIPAA breach notification rule have some overlap, organizations
subject to each will need to undertake an individual analysis to ensure they comply with both.

The new rules suggest the ongoing importance of monitoring legal and regulatory developments
in this area to help ensure that compliance and risk-management procedures are current and
can be implemented in a timely manner. The rules, coupled with continuing increased privacy
regulations, emphasize the value of creating written incident-response policies to help
coordinate responses. HHS guidance and commentary make clear the value to all healthcare
businesses in planning for these issues as part of their compliance programs.

It appears likely that all organizations that use health-related data can expect increased
emphasis on privacy and data protection in their contracts and should be prepared accordingly.
As a practical matter, coupled with other recent changes to HIPAA, many organizations,
especially business associates, may choose to review their existing policies and compliance
programs as well as their risk management strategies for handling health-related data.

Harrang Long Gary Rudnick P.C.

Our firm’s Health Law Alerts are intended to provide general information regarding recent changes and developments in the health law area. These publications do not constitute legal advice, and the reader should consult legal counsel to determine how this information may apply to any specific situation.

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