When to Use Privacy Rule Provisions vs Security Rule in Policies

Knowing when to apply HIPAA’s Privacy Rule versus the Security Rule keeps your policies precise, defensible, and efficient. The Privacy Rule governs how you use and disclose Protected Health Information (PHI) in any form. The Security Rule governs how you safeguard Electronic Protected Health Information (ePHI) through Administrative, Physical, and Technical Safeguards.

Use the Privacy Rule to decide whether you may use, share, or access PHI and under what conditions. Use the Security Rule to decide how you protect ePHI—systems, people, and processes—based on a documented Risk Assessment and ongoing risk management.

Privacy Rule Scope and Application

What the Privacy Rule Covers

The Privacy Rule applies to PHI in any format—paper, verbal, or electronic. It covers how you collect, use, disclose, and retain PHI, and it sets the standard for “minimum necessary” access and disclosure. It also establishes core patient rights, notice requirements, and the need for Patient Authorization when no other permission applies.

When to Apply It in Policy

• Determining permissible uses and disclosures (e.g., treatment, payment, health care operations) without authorization.
• Requiring Patient Authorization for marketing, most research without a waiver, or disclosures not otherwise permitted.
• Defining “minimum necessary” access, role-based access to PHI, and routines for de-identification or limited data sets.
• Publishing and honoring the Notice of Privacy Practices and documenting patient rights requests and restrictions.
• Establishing Business Associate terms for PHI handling and disclosure management.

Security Rule Scope and Application

What the Security Rule Covers

The Security Rule applies only to ePHI. It requires you to implement reasonable and appropriate Administrative, Physical, and Technical Safeguards to ensure confidentiality, integrity, and availability. Requirements are risk-based, combining required and addressable specifications driven by your Risk Assessment.

When to Apply It in Policy

• Setting expectations for security governance: risk analysis, risk management, workforce security, and sanction policies.
• Defining Physical Safeguards: facility access, device and media controls, workstation security, and disposal standards.
• Defining Technical Safeguards: unique user IDs, multi-factor authentication, encryption, audit controls, integrity checks, and transmission security.
• Establishing contingency planning: backups, disaster recovery, and emergency mode operations for critical ePHI systems.

Key Differences Between Privacy and Security Rules

• Information scope: Privacy Rule covers PHI in any form; Security Rule covers only ePHI.
• Primary focus: Privacy controls who may access, use, or disclose PHI; Security controls how you protect ePHI.
• Policy triggers: Privacy policies hinge on purpose and legal basis for use/disclosure; Security policies hinge on risks and Safeguards.
• Operational emphasis: Privacy centers on patient rights, consent/authorization, and minimum necessary; Security centers on Administrative, Physical, and Technical Safeguards.
• Examples: A policy for releasing records to a family member invokes Privacy Rule provisions; a policy for encrypting laptops that store records invokes the Security Rule.

Implementing Privacy Rule Provisions

Build a Use and Disclosure Framework

• Map routine uses and disclosures to permitted categories; document your legal bases and decision trees.
• Define when Patient Authorization is required and how you will obtain, document, and track it.
• Operationalize the minimum necessary standard with role-based access and standardized request review.

Enable Patient Rights

• Access, inspection, and copies within required timeframes; clear fee practices and delivery options.
• Amendment workflows with timely responses and documentation of approvals or denials.
• Accounting of disclosures, agreed restrictions, and confidential communications preferences.

Documentation and Oversight

• Maintain written policies, procedures, decision logs, and training records for required retention periods.
• Run periodic audits of disclosures and access, address gaps, and update your policies accordingly.

Implementing Security Rule Provisions

Start with a Risk Assessment

Identify where ePHI resides, who accesses it, and the threats and vulnerabilities affecting confidentiality, integrity, and availability. Prioritize risks, decide reasonable and appropriate controls, and document your rationale.

Administrative Safeguards

• Security management process: risk analysis, risk management, sanction policy, and periodic evaluations.
• Workforce security: onboarding, role-based access, training, and termination procedures.
• Information system activity review: audit logs, alerts, and regular security event reviews.
• Contingency planning: data backup, disaster recovery, and emergency operations testing.

Physical Safeguards

• Facility access controls with visitor management and emergency access plans.
• Workstation use and security standards for offices, nursing stations, and remote environments.
• Device and media controls for inventory, movement, reuse, and secure disposal of ePHI-bearing assets.

Technical Safeguards

• Access controls: unique IDs, least privilege, session timeouts, and multi-factor authentication.
• Audit controls: centralized logging, tamper detection, and regular review cadence.
• Integrity and transmission security: hashing, anti-malware, TLS/VPN, and end-to-end encryption where feasible.
• Automatic logoff and encryption at rest for mobile devices and endpoints that store ePHI.

Compliance and Enforcement Considerations

Build policies you can prove in practice. Keep evidence: Risk Assessments, training rosters, system diagrams, audit trails, and authorization logs. Align procurement and vendor management with Business Associate obligations for PHI and ePHI.

Enforcement focuses on whether you documented, implemented, and maintained your controls. Show that you evaluated risks, selected safeguards based on reasonableness, and continuously improved through monitoring, remediation, and re-training where needed.

Patient Rights and Authorization Requirements

Patient Rights You Must Operationalize

• Right of access to PHI, including electronic copies of ePHI, promptly and in the requested format when feasible.
• Right to request amendments, obtain an accounting of disclosures, and request restrictions or confidential communications.
• Right to receive your Notice of Privacy Practices describing uses, disclosures, and rights.

When Patient Authorization Is Required

Use Patient Authorization when a use or disclosure is not permitted by the Privacy Rule or another law. Your policy should specify authorization content elements, how you verify identity, how revocations are handled, and how you track and honor expirations or limits.

Practical Boundary Between Rules

If the question is “may we share or use this PHI?” consult the Privacy Rule. If the question is “how do we protect the ePHI involved?” consult the Security Rule. Many workflows invoke both—e.g., emailing records requires Privacy analysis for permissibility and Security controls for encryption and transmission protection.

Conclusion

Use Privacy Rule provisions to justify and govern the who, what, and why of PHI access and disclosure. Use Security Rule provisions to select and operate safeguards that protect ePHI, guided by your Risk Assessment. Together, they form a coherent policy framework that upholds patient trust while enabling safe, compliant care operations.

FAQs

What types of information fall under the Privacy Rule?

Any individually identifiable health information held or transmitted in any form—paper, oral, or electronic—is PHI under the Privacy Rule. That includes demographics linked to health status, treatment, payment, or operations activities, unless properly de-identified or part of a limited data set under applicable conditions.

When does the Security Rule apply to health information?

The Security Rule applies whenever PHI is in electronic form (ePHI). If data are stored, processed, or transmitted electronically—EHRs, billing systems, email, patient portals, backups, or mobile devices—your policies must implement Administrative, Physical, and Technical Safeguards based on a Risk Assessment.

How do the Privacy and Security Rules differ in policy development?

Privacy policies decide permissible uses and disclosures, patient rights processes, minimum necessary standards, and authorization workflows. Security policies decide how you protect ePHI—access control, encryption, logging, device handling, contingency plans, and ongoing risk management—so operations remain secure and resilient.

What are the enforcement agencies for these rules?

The U.S. Department of Health and Human Services’ Office for Civil Rights enforces both the Privacy and Security Rules through investigations, audits, and corrective action plans. Criminal violations may be pursued by the Department of Justice, and state attorneys general can bring civil actions under applicable laws.