HIPAA Privacy - Breach - Exceptions 164.402

Overview:
§164.402
Definitions: Breach Exceptions - Unsecured PHI
Breach means the acquisition, access, use, or disclosure of PHI in a manner not permitted under subpart E of this part which compromises the security or privacy of the PHI.

(1) Breach excludes:
(i) Any unintentional acquisition, access, or use of PHI by a workforce member or person acting under the authority of a covered entity or a business associate, if such acquisition, access, or use was made in good faith and within the scope of authority and does not result in further use or disclosure in a manner not permitted under subpart E of this part.
(ii) Any inadvertent disclosure by a person who is authorized to access PHI at a covered entity or business associate to another person authorized to access PHI at the same covered entity or business associate, or organized health care arrangement in which the covered entity participates, and the information received as a result of such disclosure is not further used or disclosed in a manner not permitted under subpart E of this part.
(iii) A disclosure of PHI where a covered entity or business associate has a good faith belief that an unauthorized person to whom the disclosure was made would not reasonably have been able to retain such information.

(2) Except as provided in paragraph (1) of this definition, an acquisition, access, use, or disclosure of protected health information in a manner not permitted under subpart E is presumed to be a breach unless the covered entity or business associate, as applicable, demonstrates that there is a low probability that the protected health information has been compromised based on a risk assessment of at least the following factors:
(i) The nature and extent of the protected health information involved, including the types of identifiers and the likelihood of re-identification;
(ii) The unauthorized person who used the protected health information or to whom the disclosure was made;
(iii) Whether the protected health information was actually acquired or viewed; and
(iv) The extent to which the risk to the protected health information has been mitigated.

Unsecured protected health information means protected health information that is not rendered unusable, unreadable, or indecipherable to unauthorized persons through the use of a technology or methodology specified by the Secretary in the guidance issued under section 13402(h)(2) of Public Law 111-5.

Action Items:
1) If the covered entity or business associate determines that one of the regulatory exceptions to the definition of breach at §164.402(1) applies, obtain documentation of such determination. Use sampling methodologies to select and review documentation that such were completed in accordance with §164.402.
2) If the covered entity or business associate determined that the breach did not require notification, under §§164.404-410, because the PHI was not unsecured PHI, i.e., it was rendered unusable, unreadable, or indecipherable to unauthorized persons through the use of a technology or methodology specified in the applicable guidance, obtain and review documentation. Use sampling methodologies to select and review documentation that such were completed in accordance with §164.402.

Related Documents:
1) If applicable, documentation of the determination that one of the regulatory exceptions to the definition of breach at §164.402(1) applies.
2) If applicable, documentation of the determined that the breach did not require notification, under §§164.404-410, because the PHI was not unsecured PHI, i.e., it was rendered unusable, unreadable, or indecipherable to unauthorized persons through the use of a technology or methodology specified in the applicable guidance.

Additional Guidance:
There are three exceptions to the definition of “breach.” The first exception applies to the unintentional acquisition, access, or use of protected health information by a workforce member or person acting under the authority of a covered entity or business associate, if such acquisition, access, or use was made in good faith and within the scope of authority. The second exception applies to the inadvertent disclosure of protected health information by a person authorized to access protected health information at a covered entity or business associate to another person authorized to access protected health information at the covered entity or business associate, or organized health care arrangement in which the covered entity participates. In both cases, the information cannot be further used or disclosed in a manner not permitted by the Privacy Rule. The final exception applies if the covered entity or business associate has a good faith belief that the unauthorized person to whom the impermissible disclosure was made, would not have been able to retain the information.