If a CSP experiences a security incident involving a HIPAA covered entity’s or business associate’s ePHI, must it report the incident to the covered entity or business associate?
Yes. The Security Rule at 45 CFR § 164.308(a)(6)(ii) requires business associates to identify and respond to suspected or known security incidents; mitigate, to the extent practicable, harmful effects of security incidents that are known to the business associate; and document security incidents and their outcomes. In addition, the Security Rule at 45 CFR § 164.314(a)(2)(i)(C) provides that a business associate agreement must require the business associate to report, to the covered entity or business associate whose electronic protected health information (ePHI) it maintains, any security incidents of which it becomes aware. A security incident under 45 CFR § 164.304 means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system. Thus, a business associate CSP must implement policies and procedures to address and document security incidents, and must report security incidents to its covered entity or business associate customer.
The Security Rule, however, is flexible and does not prescribe the level of detail, frequency, or format of reports of security incidents, which may be worked out between the parties to the business associate agreement (BAA). For example, the BAA may prescribe differing levels of detail, frequency, and formatting of reports based on the nature of the security incidents – e.g., based on the level of threat or exploitation of vulnerabilities, and the risk to the ePHI they pose. The BAA could also specify appropriate responses to certain incidents and whether identifying patterns of attempted security incidents is reasonable and appropriate.
Note, though, that the Breach Notification Rule specifies the content, timing, and other requirements for a business associate to report incidents that rise to the level of a breach of unsecured PHI to the covered entity (or business associate) on whose behalf the business associate is maintaining the PHI. See 45 CFR § 164.410. The BAA may specify more stringent (e.g., more timely) requirements for reporting than those required by the Breach Notification Rule (so long as they still also meet the Rule’s requirements) but may not otherwise override the Rule’s requirements for notification of breaches of unsecured PHI.
For more information on this topic, see the FAQ about reporting security incidents (although directed to plan sponsors and group health plans, the guidance is also relevant to business associates); as well as OCR breach notification guidance.