When – if ever – is notification delayed, notification denied?

Most people I know want law enforcement to investigate some breaches and realize that, sometimes, that results delaying notification of those affected by a breach. But when does delay in notification become unreasonable or too long?

Charles Sweeney reports that Samaritan Hospital in Troy, New York delayed notification from November 2011 – when it determined there was improper access to a patient’s file – until now because of a sheriff’s investigation.  In this case, an employee of Rensselaer County Jail seemingly exceeded her authorized access to the hospital’s database.  The hospital reportedly did not notify HHS of the breach at the time on the advice of their legal counsel.

So… is there ever a point where if an investigation is taking time, patients should still be notified?  Isn’t the point of notification to protect and help the patient whose PHI has been breached and who may be at risk of harm or adverse consequences as a result of a breach?  One might think that if a breach is serious enough to trigger a criminal investigation, it may also be serious enough to impact the patient. If so, is notification delayed, notification denied?

HITECH requires covered entities to notify individuals within 60 days, except that there is an exemption for law enforcement investigations:

Section 164.412(a), which is based on the requirements of 45 CFR 164.528(a)(2)(i) of the Privacy Rule, provides for a temporary delay of notification in situations in which a law enforcement official provides a statement in writing that the delay is necessary because notification would impede a criminal investigation or cause damage to national security, and specifies the time for which a delay is required. In these instances, the covered entity is required to delay the notification, notice, or posting for the time period specified by the official.

From the wording, the intent was to allow a temporary delay. Fourteen months is not a temporary delay, and yet I can find nothing in HITECH that sets an absolute limit.

I do not know why the hospital didn’t notify HHS of the breach. I do not know why the sheriff’s office took 14 months to investigate or whether any charges have been or will be filed.  All I know is that a 14-month delay in notification doesn’t strike me as acceptable.

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