Employee Disclosed PHI and Caused a HIPAA Breach: Response Guide for Employers

Immediate Reporting Requirements

When an employee discloses protected health information (PHI), treat the event as a presumptive breach under the Breach Notification Rule. Activate your incident response plan immediately and route all facts to the designated Privacy Officer without delay.

Move fast to contain harm while preserving evidence. Emphasize internal reporting over quiet fixes—the clock for required notifications runs from the point of discovery.

• Instruct the employee to stop further disclosures and secure any devices or files involved.
• Notify the Privacy Officer and Security Officer; open a formal incident record.
• Isolate compromised systems, revoke unnecessary access, and preserve logs, emails, and messages.
• If a business associate (BA) is involved, follow the contract’s notice timelines in addition to HIPAA.
• Issue a litigation hold if disputes or regulatory inquiries are foreseeable.

Conducting a Thorough Investigation

Build a cross-functional team (Privacy Officer, Security, HR, Legal, and Operations). Define the scope, timeline, data elements, and people affected to determine whether the impermissible disclosure constitutes a breach requiring notice.

Collect facts quickly and objectively. Document every step to support decisions and demonstrate compliance if audited.

• Reconstruct events: who did what, when, and using which systems or records.
• Identify PHI elements disclosed (e.g., diagnosis, SSN, account numbers) and the minimum necessary that should have been used.
• Interview involved staff and any recipients; obtain written statements and attestations.
• Preserve artifacts (screenshots, logs, messages) and confirm what was accessed, viewed, or exfiltrated.
• Determine covered entity vs. business associate roles and contractual obligations.

Performing Risk Assessment

Complete the HIPAA four-factor risk assessment to determine the likelihood that PHI has been compromised. Some organizations supplement with a Risk of Harm Assessment to consider potential impact on individuals, but your decision must align with the HIPAA standard.

• Nature and extent of PHI: sensitivity, identifiability, and risk of re-identification.
• Unauthorized person: who received PHI and their obligations or ability to misuse it.
• Whether PHI was actually acquired or viewed versus merely exposed.
• Mitigation: actions taken to reduce risk, such as obtaining a valid recipient attestation of deletion.

Use documented criteria and scoring to reach a defensible outcome. If you cannot show a low probability of compromise, treat it as a breach of unsecured PHI and proceed with notifications.

Complying with Notification Requirements

If the assessment confirms a breach, issue notices without unreasonable delay and no later than 60 calendar days from discovery. Align content and methods with the Breach Notification Rule and any stricter state requirements.

• Individuals: Send written notice by first-class mail (or email if they agreed). Include what happened, types of PHI, steps they should take, your PHI Mitigation actions, and contact information.
• HHS: For 500+ affected in a state/jurisdiction, notify within 60 days; for fewer than 500, report no later than 60 days after the end of the calendar year.
• Media: If 500+ individuals in a state/jurisdiction are affected, notify prominent media within 60 days.
• Substitute notice: If contact details are insufficient, use website posting or media per rule thresholds and maintain a toll-free number.
• Business associates: BAs must notify the covered entity without unreasonable delay (no later than 60 days); your BAA may impose shorter timeframes.
• Law enforcement delay: If an official written statement requires delay, pause notices consistent with that directive.

Implementing Sanctions and Corrective Actions

Apply Workforce Sanctions that are consistent, proportionate, and documented. Consider intent, training history, the sensitivity of PHI, prior incidents, and cooperation during the investigation.

Pair discipline with sustainable corrective actions so the issue does not recur. Use the incident to strengthen culture and controls.

• Progressive discipline: coaching, written warning, suspension, or termination for willful or repeated violations.
• Access changes: modify role-based access, enable alerts, or require dual verification for high-risk workflows.
• Policy updates: reinforce minimum necessary, disclosure workflows, and data handling standards.
• HIPAA Compliance Training: targeted refresher training for the individual and broader team when patterns emerge.

Taking Mitigation Efforts

Mitigate promptly to reduce harm to individuals and organizational risk. Aim to contain data, prevent misuse, and reassure affected parties with concrete support.

• PHI Mitigation: retrieve or securely destroy misdirected PHI; obtain recipient attestations confirming no retention, use, or further disclosure.
• Identity protection: where SSNs or financial data are involved, consider credit monitoring and fraud alerts.
• Technical controls: enable DLP, disable risky auto-complete features, tighten email and file-sharing restrictions, and require encryption everywhere feasible.
• Support lines: staff a dedicated call center and standardize answers to common questions.

Document every mitigation step; these actions inform your risk assessment and notification content.

Documenting and Maintaining Records

Maintain complete, contemporaneous records to meet Breach Documentation Requirements and demonstrate accountability. HIPAA generally requires retaining documentation for six years from creation or last effective date.

• Investigation file: incident timeline, interviews, logs, evidence, and determinations.
• Risk assessment: four-factor analysis, rationale, and approvals by the Privacy Officer.
• Notifications: copies of letters, media statements, substitute notice artifacts, and HHS submissions.
• Mitigation: attestations of deletion, retrieval records, and support services offered.
• Sanctions and remediation: disciplinary actions, policy updates, and HIPAA Compliance Training records.
• Annual log: track breaches affecting fewer than 500 individuals for year-end HHS reporting.

A disciplined approach—rapid reporting, thorough investigation, rigorous assessment, timely notification, fair sanctions, targeted mitigation, and meticulous documentation—keeps you compliant and protects patients, your workforce, and your organization.

FAQs

What steps should an employer take immediately after a PHI disclosure?

Stop the disclosure, secure systems and records, notify the Privacy Officer, preserve evidence, open an incident record, and begin a documented investigation. If a business associate is involved, follow the contract’s notice requirements in parallel.

How is the risk assessment performed following a HIPAA breach?

Apply the four-factor analysis: evaluate the PHI’s nature and extent, the unauthorized recipient, whether PHI was actually acquired or viewed, and the effectiveness of mitigation. Use documented criteria to decide whether there is a low probability of compromise.

When must affected individuals be notified of a PHI breach?

Provide notice without unreasonable delay and no later than 60 calendar days from discovery. For large incidents, also notify HHS and, if 500 or more individuals in a state or jurisdiction are affected, the media within 60 days.

What disciplinary actions are appropriate for employees who cause breaches?

Sanctions should be proportionate to intent and impact and applied consistently: coaching or retraining for minor negligence, written warnings or suspension for significant violations, and termination for willful or repeated misconduct, along with corrective process and training measures.