Five Takeaways From The OCR Reminder On HIPAA Obligations In Ransomware Incidents

Apparently prompted by the recent high-profile wave of ransomware attacks, the Department of Health and Human Services' Office of Civil Rights (OCR) has reminded hospitals, healthcare systems, and other covered entities and business associates of their cybersecurity obligations. The reminder follows a previous warning that unless the affected covered entity or business associate can establish that there is a low probability that personal health information (PHI) has been compromised, a breach is presumed to have occurred.

OCR's reminder reiterated that the HIPAA Breach Notification Rule defines a breach as the impermissible acquisition of, access to, use of, or disclosure of PHI. Under these criteria, most ransomware incidents would be considered breaches absent an affirmative showing, under a high evidentiary standard, that specific safe harbors apply.