A business associate’s response to a breach raises questions of timeliness

I know we’re in the middle of a pandemic, but an incident involving Avalon Health Care Management occurred before all that.  And once again, I find myself scratching my head over the timeline in a notification and how Health & Human Services/Office of Civil Rights will view the timeline in terms of compliance with the 60-day window to notify of a breach.

As described by their external counsel in a letter dated March 16 to the Washington state attorney general’s office:

On July 9, 2019, Avalon became aware of suspicious activity within its email system. Upon making this discovery, Avalon immediately took steps to secure its email system and investigate the activity. As part of the investigation, Avalon engaged an independent digital forensics expert to determine what happened and whether any personal information had been accessed without authorization. On August 5, 2019, Avalon learned that the email account of one of its employees may have been accessed without authorization. Upon completion of the forensic investigation, Avalon engaged a  document review vendor to search the contents of the impacted email account to identify the individuals whose personal information may have been contained within the account. On December 16, 2019, Avalon learned that the personal information of some of its patients and employees was contained within the account. Avalon then conducted a thorough review of the information that may have been affected and completed a detailed investigation to identify those individuals whose information was potentially impacted and determine their place of residence. Based upon this analysis, on January 27, 2020, Avalon determined that the names and Social Security numbers of 1,723 Washington residents, and the names and limited medical information of an additional 138 Washington residents were contained within the impacted email account and may have been exposed as a result of this incident.

You can read the full notification here.

Remember that the above numbers were specific to Washington State. Avalon reported this incident to HHS on February 14 as impacting 14,500 patients.

But look at how Avalon Health Care described the timeline on their web site in their March 16 notice:

On December 16, 2019, Avalon learned that the personal information of some of its patients and employees contained in an employee email account was potentially exposed to an unauthorized user.  This discovery was made during the course of an independent digital forensic investigation.  By January 27, 2020, Avalon completed a thorough review of the information that may have been affected and completed its investigation to identity those individuals whose information was potentially impacted.  Avalon is unaware of any evidence indicating that anyone’s information has been misused as a result of this incident.

If that’s all you knew, it would sound like Avalon first discovered a problem on December 16, identified those who needed to be notified by January 27, and notified them all by March 16. That’s more than 60 days (unless you figure completing an investigation is your date of discovery), but it’s nowhere near as concerning as their more detailed report that admits that they first detected unusual activity in an email account back in July 2019.

So how would YOU calculate the gap from discovery to notification?  And what will HHS/OCR do? Anything?

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