HIPAA breaches involving fewer than 500 individuals, which occurred during 2020, must be reported to the US Department of Health and Human Services (HHS) by Monday, March 1, 2021.
Reporting HIPAA Breaches: When Should I Contact HHS?
When reporting HIPAA breaches that involve fewer than 500 people, you have two options: First, you can report these small breaches to HHS as they occur. Or, you can collect the details of these HIPAA breaches and report them to the Secretary of HHS within 60 days of the end of the calendar year (following the year in which the breaches occurred).
Either way, you must log every breach as it happens. Include every breach in your log, regardless of how minor the incident or how few individuals involved.
Covered Entities and Business Associates must notify the Secretary of HHS by filling out and electronically submitting a breach report on the HHS website here. If the number of individuals affected by a breach is uncertain at the time of submission, the Covered Entity or Business Associate should provide an estimate.
In the case that the Covered Entity or Business Associate discovers additional information later, they should submit updates as indicated on the HHS form. If the Covered Entity or Business Associate decides to report all breaches affecting fewer than 500 individuals on one date, they must file a separate notice for each breach incident.
Definition of HIPAA Breaches
A simple oversight or event may qualify as a HIPAA breach. Here are a few examples from the HHS website:
- A municipal social service agency disclosed PHI while processing Medicaid applications. They sent consolidated data to computer vendors that were not Business Associates.
- A mental health center did not provide a Notice of Privacy Practices to a father or his minor daughter, who was a patient at the center.
- A staff member of a medical practice discussed HIV testing procedures with a patient in the waiting room, thereby disclosing PHI to several other individuals.
- A grocery store based pharmacy chain maintained pseudoephedrine logbooks containing PHI in a manner that made individual PHI visible. So, that individual PHI was visible to the public at the pharmacy counter.
- A law firm working on behalf of a pharmacy chain impermissibly disclosed the PHI of a customer of the pharmacy. The pharmacy chain and the law firm had not entered into a Business Associate Agreement.
You can view the full list of HHS examples here.
Will I Be Penalized for HIPAA Breaches I Report?
No, HHS will not penalize you. Logging your HIPAA breaches throughout the year demonstrates to HHS that you are doing your best to comply with the law. Acknowledge potential compromises of PHI and take measures to make sure similar incidents do not occur again.
Neglecting to log HIPAA breaches, however, carries serious consequences. HHS sees this as a failure to cooperate. In order to remain HIPAA compliant, you must train all appropriate employees on logging HIPAA breaches. If HHS audits your organization, they will ask your employees to demonstrate knowledge on the breach report logging process. Otherwise, you may face serious fines.
What if My Business Associate Logged the HIPAA Breach?
If your Business Associate logged the breach and you have designated them as responsible for reporting, that is fine. However, you will want to review the breach report before they file it to make sure it contains correct information.
Additionally, we advise following up with them prior to the deadline (Monday, March 1, 2021) to make sure they filed the report. Above all, maintaining a signed Business Associates Agreement protects you from being held liable for your Business Associate’s or Business Associate Subcontractor’s mistakes.
More on Reporting HIPAA Breaches
If you have never logged HIPAA breaches, now is an excellent time to establish a process for proper reporting. You must train your employees on this process so they can help your organization maintain HIPAA compliance.