This blog series has been following breaches of Protected Health Information (“PHI”) that have been reported on the U.S. Department of Health and Human Services (“HHS”) ever-lengthening parade list (the “HHS List”) of breaches of unsecured PHI affecting 500 or more individuals (the “List Breaches”). As of January 1, 2013 (and as of today), there were 525 postings of List Breaches.
A previous blog post reported that, on February 24, 2012, HHS listed the 400th List Breach. As the first postings on the HHS List occurred on March 4, 2010, an average of about 200 postings of List Breaches were recorded in each of its first two years. However, in the 10-plus months between February 24, 2012 and January 1, 2013, 125 additional List Breaches were posted, which on an annualized twelve month period basis would translate into 150 List Breaches. It is not yet clear whether the lower volume of List Breaches since February 2012 is attributable to increased caution and better practices in protecting PHI on the part of covered entities (“CEs”) and business associates (“BAs”), greater use of encryption and other practices to protect PHI, slower postings of List Breaches by HHS, other factors or a combination thereof.
Of the total of 525 List Breaches posted through January 1, 2013, there were approximately 274 (52.2%) events shat attributed the type of breach to involve “theft” of all kinds, including laptops, other portable electronic devices, desktop computers, network servers, paper records and others. If the 60 additional List Breaches listing the category of “loss” of all types is added to the 274 “theft” events, the total for the two categories swells to approximately 334 or 63.6% of the 525 posted List Breaches. Combining the two categories appears to make some sense since it is likely that a number of the List Breaches categorized as a “loss” event may have involved some theft aspects.
Even more revealing may be the fact that approximately 193 (36.8%) of the 525 List Breaches listed the cause or partial cause of the breach to be “theft” or “loss” respecting laptops or other portable electronic devices. Theft or loss of laptops or other portable electronic devices thus constituted 51.6% of the 334 List Breaches that involved reported theft or loss.
Over the last 10 months since the number of List Breaches passed 400, it appears that the relative percentage of List Breaches attributable to theft and loss is trending mildly upward. Of the 125 additional reported List Breaches, approximately 86 or 68.8% listed theft or loss as the source of the PHI breach. The number of such 125 List Breaches that reported theft or loss of laptops or other portable electronic devices was 37 or 29.6%, a lower percentage than the 36.8% for all 525 List Breaches. The sample sizes are relatively small, so that further following of these numbers is warranted.
My partner, William Maruca, Esq., recently posted a blog entry highlighting the fact that the first breach settlement announcement by HHS in 2013 (the “2013 Settlement”) involved a $50,000 fine based on theft of a laptop containing 441 patients’ unencrypted data. It was the first fine by HHS for a PHI security breach that involved fewer than 500 individuals and, therefore, was below the threshold for a List Breach.
While the parade of List Breaches continues to lengthen, the 2013 Settlement underscores the fact that there are many more PHI security breaches involving fewer than 500 individuals. The PHI security breaches that are not List Breaches are receiving increased scrutiny by HHS. As this blog series has emphasized in the past, it may become more a question of when a CE or BA will suffer a PHI security breach and how severe the breach will be, rather than if it will suffer a breach. All CEs and BAs must exercise vigilance and use recommended protection procedures to avoid all PHI security breaches, not just large List Breaches. The continuing proliferation of the use of portable electronic devices to receive, access and store PHI should be monitored, as it can be expected that this type of security breach will continue to expand.