HOW TO RESPOND TO A DATA BREACH: IT’S NOT JUST ABOUT HIPAA ANYMORE The Fourteenth National HIPAA SummitMarch 29, 2007 Renee H. Martin, JD, RN, MSN Tsoules, Sweeney, Martin & Orr, LLC 29 Dowlin Forge Road Exton, PA 19341 610-423-4200 [email protected]
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HOW TO RESPOND TO A DATA BREACH: ITS NOT JUST ABOUT HIPAA ANYMORE The Fourteenth National HIPAA Summit March 29, 2007 Renee H. Martin, JD, RN, MSN Tsoules,
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HOW TO RESPOND TO A DATA BREACH: IT’S NOT JUST ABOUT HIPAA ANYMOREThe Fourteenth National HIPAA
Summit
March 29, 2007
Renee H. Martin, JD, RN, MSNTsoules, Sweeney, Martin & Orr, LLC
• Covered entity: has duty to “mitigate” impermissible uses
and disclosures has duty to account for impermissible uses
and disclosures.
• Covered entity may use and disclose PHI with business associate; business associate must report to covered entity any breach of which it becomes aware
• No express requirement for business associate to notify others or to mitigate effect of breach
• Requires person, business or state agency that owns or licenses computerized data that includes personal information about California residents to implement and maintain reasonable security procedures and practices to protect personal information from unauthorized access, destruction, use, modification or disclosure
• Personal Information. An individual’s first name or first initial and last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted: SSN; Driver’s license number of CA ID card number; or Account number, credit or debit card number, in
combination with any required security code, access code, or password (e.g., a PIN) that would permit access to an individual’s financial account.
• Security Breach Definition. An unauthorized acquisition of computerized data that compromises the security, confidentiality, or integrity of PI maintained by the person, business, or state agency.
• Notification Obligation. Disclose any breach of the security of the system following discovery or notification of breach in the security of the data to any resident of CA whose unencrypted PI was, or is reasonably believed to have been, acquired by an unauthorized person.
• Third Party Data Notification. If any entity maintains computerized data that includes PI that the entity does not own, the entity must notify the owner or licensee of the information of any breach of the security of the data immediately following discovery, if the PI was, or is reasonably believed to have been, acquired by an unauthorized person.
• Timing of Notification. The disclosure shall be made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement or any measures necessary to determine the scope of the breach and restore the reasonable integrity of the data system.
• Notice Provisions. Notice of breaches may be provided by one of the following methods:
Written notice (form not specified).
Electronic notice, if the notice provided is consistent with the provisions regarding electronic records and signatures set forth in 15 U.S.C. § 7001 et seq. (E-Sign).
Substitute notice, if the entity demonstrates that the cost of providing notice would exceed $250,000, or that the affected class of subject persons to be notified exceeds 500,000, or the entity does not have sufficient contact information. Substitute notice shall consist of all of the following:
– E-mail notice when the entity has an e-mail address for the subject persons.
– Conspicuous posting of the notice on the entity’s Web site page, if the entity maintains one.
– Notification to major statewide media.(Continued)
• Exception: Own Notification Policy. Any entity that maintains its own notification procedures as part of an information security policy for the treatment of PI and is otherwise consistent with the timing requirements of the statute shall be deemed in compliance with the notification requirements of the statute if it notifies subject persons in accordance with its policies in the event of a security breach.
The California Office of Privacy ProtectionRecommendations for Notice:• A general description of what happened• The type of personal information involved:
SSN, driver’s license or state ID card number, bank account number, credit card number, or other financial account number.
• What you have done to protect the individual’s personal information from further unauthorized acquisition.
The California Office of Privacy ProtectionRecommendations for Notice:• What your organization will do to assist individuals,
including providing your toll-free contact telephone number for more information and assistance.
• Information on what individuals can do to protect themselves from identity theft, including contact information for the three credit reporting agencies.
• Contact information for the California Office of Privacy Protection and/or the Federal Trade Commission for additional information on protection against identity theft.