Guest Post: Small Breaches Still Reportable – Current State of HIPAA Breach Notification

Posted on November 3, 2011 I Written By

John Lynn is the Founder of the blog network which currently consists of 10 blogs containing over 8000 articles with John having written over 4000 of the articles himself. These EMR and Healthcare IT related articles have been viewed over 16 million times. John also manages Healthcare IT Central and Healthcare IT Today, the leading career Health IT job board and blog. John is co-founder of and John is highly involved in social media, and in addition to his blogs can also be found on Twitter: @techguy and @ehrandhit and LinkedIn.

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. Here’s a link to read all of the HIPAA Breach Notification Rules guest posts.

In the world of release of information (ROI), we see the breach of one or two records much more frequently than the massive, over-500 events. Smaller, one- or two-record breaches do not require immediate notification to HHS. The HITECH Act says they should be aggregated and sent to HHS at the end of each year. In 2010, the agency received more than 25,000 reports of smaller breaches affecting more than 50,000 individuals. The complete Annual Report to Congress (PDF) from HHS for 2009 and 2010 is available online.

The most common, inadvertent breaches within the ROI process involve sending the wrong record to the wrong person or third party. It is usually human error that produces these breaches. For example, the CE gets a written request from an insurance company, attorney or patient for medical record #12345. Someone pulls the wrong medical record either paper-based or electronic, say medical record #12344 and sends it. The result—a breach!

Training, education, skilled staff and solid procedures are the best approach to minimizing human error-based breaches, but they are inevitable. If and when it happens, the CE must evaluate sending a notification to the patient.

Another observation about breaches is that reactions to them seem to be very polarizing. Sometimes we see “breach fatigue” by patients. They hear so much about breaches that any leakage of their information is considered “no big deal” and simply a reality of modern, high-tech times. “After all, who really cares about the appendectomy I had ten years ago?” The opposite pole is that some patients become very upset and exhibit a sense of great concern.

Ultimately, the balance between a patient’s right of confidentiality and the provider’s needs for workflow consistency will continue to evolve. In the meantime, until a final breach notification rule is released, every CE must determine for itself how patient notices are analyzed and handled.