Continuing along the discussion of the HITECH Act this week, I want to consider a couple of questions I recently discussed with a CISO at a healthcare insurer about when breach notification is necessary…
1) What if a database of zipcodes was breached and it is determined the zipcodes can not be linked back to the individual?
2) What PHI elements, if breached, would warrant notification?
Let’s answer the zipcode database question first.
First let’s revisit the HITECH Act definition of a breach; see the excerpt of this definition of the “SEC. 13400 DEFINITIONS.” section by scrolling to see below.
Keep in mind the HITECH Act is basically an expansion of HIPAA. The specific data items considered as protected health information (PHI) are really those items specified as the individually identifiable health information items (defined within HIPAA) that must be removed from records to de-identify them. Those items include (as excerpted from the HIPAA regulatory text as well as from my discussion of the topic of de-identification in my book, “The Practical Guide to HIPAA Privacy and Security Compliance“) the 18 items listed after the breach definition below; scroll to see them.
So, now let’s answer the question: if a database of zipcodes was accessed by an unauthorized individual, let’s say a crook stole a laptop containing such a zipcode database of patients/customers, is it a breach under the HIPAA HITECH Act?
Reasoning:
a. Zipcode *IS* considered as a type of PHI under (B) in the definition.
b. However, under that same definition, (2) “(ii) The covered entity does not have actual knowledge that the information could be used alone or in combination with other information to identify an individual who is a subject of the information,” must be considered.
c. Could just a database of zipcodes be linked to specific individuals? The question states that it has been determined they cannot.
d. So, the theft of the laptop containing just a database of zip codes would likely not be considered to be a breach, so would not require breach notification.
However, what if the laptop contained more than just a database of zipcodes? What if it also contained a database of patient/customer names?
Reasoning:
a. Zipcode *IS* considered as a type of PHI under (2)(i)(B) in the definition.
b. Name *IS* considered as a type of PHI under (2)(i)(A) in the definition.
c. Considering (2)(ii), it is possible that the combination of names and zip codes could be used to identify specific individuals.
d. So, the theft of the laptop containing a database of zip codes and a database of names would likely be considered to be a breach, and so would require notification.
Which brings us back to question 2) from the CISO, “What PHI elements, if breached, would warrant notification?“; the answer is not a simple one.
Notification of a breach would be required if, based upon thoughtful reasoning and analysis, it was determined that the PHI elements, individually or in combination, could point to a specific individual(s).
This highlights the very important need for organizations to document this process of breach notice determination within their incident and breach response plans.
Determine the folks who have the role and responsibility of asking these questions and doing the analysis to answer them on behalf of your organization.
Don’t try to make such breach notice decisions on the fly, and without following such a procedure that can be consistently applied.
Discuss these scenarios and issues with your legal counsel to make, and document, the best choices for your organization.
Here’s the excerpt from the HITECH Act of the definition of a breach:
” SEC. 13400. DEFINITIONS.
In this subtitle, except as specified otherwise:
(1) BREACH.–
(A) IN GENERAL.–The term ”breach” means the unauthorized acquisition, access, use, or disclosure of protected health information which compromises the security or privacy of such information, except where an unauthorized person to whom such information is disclosed would not reasonably have been able to retain such information.
(B) EXCEPTIONS.–The term ”breach” does not include–
(i) any unintentional acquisition, access, or use of protected health information by an employee or individual acting under the authority of a covered entityor business associate if–(I) such acquisition, access, or use was made in good faith and within the course and scope of the employment or other professional relationship of such employee or individual, respectively, with the covered entity or business associate; and
(II) such information is not further acquired, accessed, used, or disclosed by any person; or(ii) any inadvertent disclosure from an individual who is otherwise authorized to access protected health information at a facility operated by a covered entity or business associate to another similarly situated individual at same facility; and
(iii) any such information received as a result of such disclosure is not further acquired, accessed, used, or disclosed without authorization by any person.”
Here is the excerpt from HIPAA of that listing of 18 items that are considered as individually identifiable information within the HIPAA text, in addition to other considerations:
“(b) Implementation specifications: Requirements for de-identification of protected health information. A covered entity may determine that health information is not individually identifiable health information only if:
(1) A person with appropriate knowledge of and experience with generally accepted statistical and scientific principles and methods for rendering information not individually identifiable:(i) Applying such principles and methods, determines that the risk is very small that the information could be used, alone or in combination with other reasonably available information, by an anticipated recipient to identify an individual who is a subject of the information; and
(ii) Documents the methods and results of the analysis that justify such determination; or(2)
(i) The following identifiers of the individual or of relatives, employers, or household members of the individual, are removed:
(A) Names;
(B) All geographic subdivisions smaller than a State, including street address, city, county, precinct, zip code, and their equivalent geocodes, except for the initial three digits of a zip code if, according to the current publicly available data from the Bureau of the Census:
(1) The geographic unit formed by combining all zip codes with the same three initial digits contains more than 20,000 people; and
(2) The initial three digits of a zip code for all such geographic units containing 20,000 or fewer people is changed to 000.
(C) All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, date of death; and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older;
(D) Telephone numbers;
(E) Fax numbers;
(F) Electronic mail addresses;
(G) Social security numbers;
(H) Medical record numbers;
(I) Health plan beneficiary numbers;
(J) Account numbers;
(K) Certificate/license numbers;
(L) Vehicle identifiers and serial numbers, including license plate numbers;
(M) Device identifiers and serial numbers;
(N) Web Universal Resource Locators (URLs);
(O) Internet Protocol (IP) address numbers;
(P) Biometric identifiers, including finger and voice prints;
(Q) Full face photographic images and any comparable images; and
(R) Any other unique identifying number, characteristic, or code, except as permitted by paragraph (c) of this section; and
(ii) The covered entity does not have actual knowledge that the information could be used alone or in combination with other information to identify an individual who is a subject of the information.”