Health Information Compliance Alert

Understand the new definition of ‘breach of unsecured PHI.’

If you have a breach of protected health information (PHI) — regardless of whether it’s related to a “bring your own device” (BYOD) problem — you now have a new process for determining whether the breach posed a significant risk.

The U.S. Department of Health and Human Services issued the new final Omnibus Rule and published it in the Jan. 25 Federal Register. The rule implements a new definition of “breach,” which now encompasses “any impermissible use or disclosure of PHI.”

“Specifically, there is a new presumption that an unauthorized use or disclosure of unsecured PHI constitutes a breach unless the covered entity or business associate demonstrates a low probability that the PHI has been compromised,” according to the law firm Epstein Becker Green. “Thus, entities will no longer be able to conduct analyses to determine whether uses or disclosures of PHI pose a significant risk of harm to individuals.

Instead, the Omnibus Rule mandates that you analyze the following:

1. The nature and extent of PHI involved in the use or disclosure, including the types of identifiers and the likelihood of re-identification; 

2. The unauthorized entity to whom the PHI was disclosed or who used the PHI;

3. Whether the PHI was actually acquired or viewed; and 

4. The extent to which the risk to the PHI has been mitigated.

Resource: To view the entire Final Rule, go to www.gpo.gov/fdsys/pkg/FR-2013-01-25/pdf/2013-01073.pdf.