How to Tackle an Accidental HIPAA Violation

The Healthcare Insurance Portability and Accountability Act (HIPAA) is a federal regulation regarding patient records that dictates compliance rules for healthcare practitioners and outlines essential HIPAA rules. An in-depth understanding of how HIPAA impacts your work will enable you to avoid potential breaches while protecting your patients and practice.

Given the amount of sensitive patient information that is handled within the healthcare industry, patient confidentiality is of utmost importance. This means that the information that is shared between you and a patient needs to be handled sensitively, using HIPAA-compliant online forms, and any stored data requires protective safeguards. Unfortunately, HIPAA violations do occur (even accidentally), so you and other healthcare organizations must know how to deal with these situations should they happen.

In this guide, we'll outline the differences between accidental and serious breach notifications and incidental violations before highlighting the steps you should take to avoid HIPAA violations.

What is an accidental HIPAA violation?

Despite rigorous HIPAA rules, there is still a possibility to accidentally violate HIPAA. An accidental HIPAA violation is the unauthorized disclosure of protected health information (PHI) without intent. Despite having safeguards and protective measures in place, there is still a possibility of breaching or violating HIPAA and regulations.

Examples of HIPAA violations in this sense include an employee accidentally seeing a different patient's medical records, an email or paper records being sent to the wrong person, or losing or stealing a personal device containing PHI. These HIPAA violations affect patients by compromising their security and welfare.

Although each of these violations is accidental, the individual or practice involved will still have to bear the responsibility for the unauthorized disclosure of PHI. The consequences of accidental violations and this kind of data breach vary depending on circumstances. However, they are highly likely to incur fines and occasionally even lose a medical license.

Everyone is human and makes mistakes, but being vigilant about treating PHI will help minimize the risk of accidental violations and ensure your patients remain protected. 

Incidental HIPAA violations vs accidental HIPAA violations

Incidental HIPAA violations refer to the incidental or inadvertent disclosure of PHI. The main difference between these and accidental HIPAA violations is the presence of adequate safeguards protecting PHI. HIPAA recognizes that there are some unavoidable circumstances wherein PHI may be incidentally disclosed. Depending on the context of these instances, they do not need to be reported.

The HIPAA Privacy Rule essentially states that incidental disclosures of PHI are allowed when the Covered Entity has implemented compliance policies to the minimum necessary standard. Covered entities and business associates must understand these distinctions to manage their compliance strategies better. Some commonly occurring examples of incidental or unintentional HIPAA violations include:

• A patient sees another patient's name or medical treatment information on a whiteboard at the healthcare clinic.
• A conversation between two providers or between a patient and a provider is overheard.

While it is difficult to eradicate incidental disclosures completely, there are safeguards your practice can put in place to minimize their occurrence:

• Conversations between providers or patients about PHI should be conducted in a private room or space. 
• Providers, receptionists, and other healthcare staff should only call out a patient's first name to protect their privacy.

How should practitioners respond to accidental HIPAA violations?

Although nobody likes to think about the possibility of a HIPAA violation, you must know how to deal with it if it does occur. Three steps should be taken immediately to ensure your response is prompt and professional about an unintentional HIPAA violation: investigate the violation, complete a risk assessment, and implement relevant further training if necessary.

As soon as an accidental violation occurs, the involved staff member must report it to the HIPAA privacy officer. From there, the officer will conduct a risk assessment into the manner of the violation to determine the next steps. Risk assessments can differ slightly depending on the violation, but they typically involve acquiring the following information: 

1. The nature of the breach
2. What type of information is involved in a violation
3. Which patients are impacted
4. To whom is the information disclosed
5. Chances of the information being re-disclosed
6. The extent to which the risk has been avoided

After conducting a risk assessment, it will be decided whether or not the breach needs to be reported. Certain violations are exempt, and these are usually breaches in which a staff member acted in good faith and immediately attempted to rectify their mistake. Additionally, after an accidental HIPAA violation has occurred, the business associate must report the details of the incident to the covered entity within 60 days. 

Depending on the nature of the accidental HIPAA violation and what it entailed, the healthcare practice may deem it necessary to implement policies and protocols to help maintain compliance. This could include a training session for all staff, reinforcing good communication, or updating the software that is in place.

Although every healthcare business should aim to minimize the risk of HIPAA violations, it is important to understand the procedures that follow accidental patient data breaches. Knowing this information will allow you to minimize the damage from the violation and protect both healthcare providers and patients.

What are some examples of unintentional HIPAA violations?

Regarding HIPAA violations, it is very important to understand the difference between accidental and intentional breaches. Whilst these may sound quite self-explanatory, having a few examples of common accidental HIPAA violations will help you to solidify this knowledge: 

1. A healthcare physician accidentally accesses a patient's medical records that they aren't authorized to see. They immediately exit the database after noticing they are viewing the wrong files. 
2. A healthcare worker is discussing a patient's medical treatment intervention and/or progress with another of the patient's providers. Another staff member overhears this conversation, informs them, and they move to a more discreet location. 
3. A physician downloads PHI onto a USB flash drive, which is then stolen. Although the individual didn't mean to lose the device, it is a foreseeable incident that could have been prevented using certain measures, so it is still considered a HIPAA violation. 
4. A healthcare business sent X-ray files to an external company to be digitized. However, the two companies had no BAA (business associate agreement), making it a HIPAA violation. 
5. A healthcare provider spoke to their patient about the results of a recent medical test within the earshot of other patients. 

Although all of these are examples of accidental HIPAA violations, they vary in their degree of seriousness. Depending on the intent of and damage caused by the breach, the consequences may vary between implementing a policy that violates HIPAA regulations and rules, training, incurring a fine, or even losing your job.

Common FAQs around HIPAA violations

Examples of most common HIPAA violations that are complicated. Regulations are constantly changing, and new protocols are frequently introduced. To help you consolidate your knowledge, we've included a list of some of the most common FAQs:

When must an accidental HIPAA violation be reported to the Department of Health and Human Services Office for Civil Rights? 

An accidental HIPAA violation must be reported to the OCR only when there is an unauthorized disclosure of PHI. Breaches involving fewer than 500 individuals’ PHI must be reported to the OCR within 60 days of the end of the calendar year when the breach was discovered.

What is the “burden of proof” in the Breach Notification Rule? 

The "burden of proof" lies with the covered entity or business associate to demonstrate that an impermissible use or disclosure of protected health information (PHI) does not constitute a breach that requires notification.

Is a HIPAA violation grounds for termination? 

While willful HIPAA violations are grounds for termination, the employer decides in the case of accidental breaches. Depending on the damage and scope of the breach, an internal investigation may result in consequences that vary from termination to the implementation of enhanced compliance training. 

Final thoughts

HIPAA compliance is an essential component of working in the healthcare industry. While understanding the relevant regulations can be complicated, protecting yourself and your patients is imperative. In recent years, healthcare compliance software has been developed to assist healthcare practices in effectively maintaining compliance. That includes Carepatron, which offers comprehensive practice management software to safeguard PHI, implement proper authorization and password controls, and ensure that clinical documentation is always protected.