Apr 122019

Attorney Matt Fisher writes:

Notice of a new data breach is posted at least once a day. A frequent feature of many notices is the disclosure that the conduct giving rise to the breach happened months earlier, with the delay sometimes going into years in some instances.

The notices typically do not provide much insight into the reasoning for the delays, which gives rise to the question; when should notice of a data breach be provided?

The answer is seemingly straightforward. The HIPAA data breach notification rule states that, absent certain narrow exceptions, a covered entity needs to provide notice without unreasonable delay, which should be no more than 60 days following discovery of the breach.

The language “without unreasonable delay” is key.

Read more of Matt’s commentary on Health Data Management.  The issue of when a breach is considered “discovered” for purposes of starting any clock is one I grapple with on almost a daily basis. Matt seems to take a fairly firm position about what “discovered” means, but I am aware that there are entities who argue to the effect of “Well, how do you know who to notify and what to tell them if you are still investigating at 60 days?”

That seems to be a fairly logical argument, until I respond, “Well, why couldn’t you have have determined that sooner?” Did you allow too much ePHI to accumulate in employees’ email accounts?  Did you fail to check logs regularly? Did you not hire enough people to investigate this breach intensively?” When did you start the intensive investigation after discovery?

But then, it’s easy to sit at a desk in my office and lob questions at entities when I would not want to change places with those trying to respond to an incident.

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