Part A—Improved Privacy Provisions and Security Provisions
§17931. Application of security provisions and penalties to business associates of covered entities; annual guidance on security provisions
(a) Application of security provisions
Sections 164.308, 164.310, 164.312, and 164.316 of title 45, Code of Federal Regulations, shall apply to a business associate of a covered entity in the same manner that such sections apply to the covered entity. The additional requirements of this title 1 that relate to security and that are made applicable with respect to covered entities shall also be applicable to such a business associate and shall be incorporated into the business associate agreement between the business associate and the covered entity.
(b) Application of civil and criminal penalties
In the case of a business associate that violates any security provision specified in subsection (a),
(c) Annual guidance
For the first year beginning after February 17, 2009, and annually thereafter, the Secretary of Health and Human Services shall, after consultation with stakeholders, annually issue guidance on the most effective and appropriate technical safeguards for use in carrying out the sections referred to in subsection (a) and the security standards in subpart C of part 164 of title 45, Code of Federal Regulations, including the use of standards developed under section 300jj–12(b)(2)(B)(vi) 1 of this title, as added by section 13101 of this Act, as such provisions are in effect as of the date before February 17, 2009.
(
Editorial Notes
References in Text
This title, referred to in subsec. (a), is title XIII of div. A of
Section 13101 of this Act, referred to in subsec. (c), means section 13101 of div. A of
Statutory Notes and Related Subsidiaries
Effective Date
1 See References in Text note below.
§17932. Notification in the case of breach
(a) In general
A covered entity that accesses, maintains, retains, modifies, records, stores, destroys, or otherwise holds, uses, or discloses unsecured protected health information (as defined in subsection (h)(1)) shall, in the case of a breach of such information that is discovered by the covered entity, notify each individual whose unsecured protected health information has been, or is reasonably believed by the covered entity to have been, accessed, acquired, or disclosed as a result of such breach.
(b) Notification of covered entity by business associate
A business associate of a covered entity that accesses, maintains, retains, modifies, records, stores, destroys, or otherwise holds, uses, or discloses unsecured protected health information shall, following the discovery of a breach of such information, notify the covered entity of such breach. Such notice shall include the identification of each individual whose unsecured protected health information has been, or is reasonably believed by the business associate to have been, accessed, acquired, or disclosed during such breach.
(c) Breaches treated as discovered
For purposes of this section, a breach shall be treated as discovered by a covered entity or by a business associate as of the first day on which such breach is known to such entity or associate, respectively, (including any person, other than the individual committing the breach, that is an employee, officer, or other agent of such entity or associate, respectively) or should reasonably have been known to such entity or associate (or person) to have occurred.
(d) Timeliness of notification
(1) In general
Subject to subsection (g), all notifications required under this section shall be made without unreasonable delay and in no case later than 60 calendar days after the discovery of a breach by the covered entity involved (or business associate involved in the case of a notification required under subsection (b)).
(2) Burden of proof
The covered entity involved (or business associate involved in the case of a notification required under subsection (b)), shall have the burden of demonstrating that all notifications were made as required under this part, including evidence demonstrating the necessity of any delay.
(e) Methods of notice
(1) Individual notice
Notice required under this section to be provided to an individual, with respect to a breach, shall be provided promptly and in the following form:
(A) Written notification by first-class mail to the individual (or the next of kin of the individual if the individual is deceased) at the last known address of the individual or the next of kin, respectively, or, if specified as a preference by the individual, by electronic mail. The notification may be provided in one or more mailings as information is available.
(B) In the case in which there is insufficient, or out-of-date contact information (including a phone number, email address, or any other form of appropriate communication) that precludes direct written (or, if specified by the individual under subparagraph (A), electronic) notification to the individual, a substitute form of notice shall be provided, including, in the case that there are 10 or more individuals for which there is insufficient or out-of-date contact information, a conspicuous posting for a period determined by the Secretary on the home page of the Web site of the covered entity involved or notice in major print or broadcast media, including major media in geographic areas where the individuals affected by the breach likely reside. Such a notice in media or web posting will include a toll-free phone number where an individual can learn whether or not the individual's unsecured protected health information is possibly included in the breach.
(C) In any case deemed by the covered entity involved to require urgency because of possible imminent misuse of unsecured protected health information, the covered entity, in addition to notice provided under subparagraph (A), may provide information to individuals by telephone or other means, as appropriate.
(2) Media notice
Notice shall be provided to prominent media outlets serving a State or jurisdiction, following the discovery of a breach described in subsection (a), if the unsecured protected health information of more than 500 residents of such State or jurisdiction is, or is reasonably believed to have been, accessed, acquired, or disclosed during such breach.
(3) Notice to Secretary
Notice shall be provided to the Secretary by covered entities of unsecured protected health information that has been acquired or disclosed in a breach. If the breach was with respect to 500 or more individuals than 1 such notice must be provided immediately. If the breach was with respect to less than 500 individuals, the covered entity may maintain a log of any such breach occurring and annually submit such a log to the Secretary documenting such breaches occurring during the year involved.
(4) Posting on HHS public website
The Secretary shall make available to the public on the Internet website of the Department of Health and Human Services a list that identifies each covered entity involved in a breach described in subsection (a) in which the unsecured protected health information of more than 500 individuals is acquired or disclosed.
(f) Content of notification
Regardless of the method by which notice is provided to individuals under this section, notice of a breach shall include, to the extent possible, the following:
(1) A brief description of what happened, including the date of the breach and the date of the discovery of the breach, if known.
(2) A description of the types of unsecured protected health information that were involved in the breach (such as full name, Social Security number, date of birth, home address, account number, or disability code).
(3) The steps individuals should take to protect themselves from potential harm resulting from the breach.
(4) A brief description of what the covered entity involved is doing to investigate the breach, to mitigate losses, and to protect against any further breaches.
(5) Contact procedures for individuals to ask questions or learn additional information, which shall include a toll-free telephone number, an e-mail address, Web site, or postal address.
(g) Delay of notification authorized for law enforcement purposes
If a law enforcement official determines that a notification, notice, or posting required under this section would impede a criminal investigation or cause damage to national security, such notification, notice, or posting shall be delayed in the same manner as provided under section 164.528(a)(2) of title 45, Code of Federal Regulations, in the case of a disclosure covered under such section.
(h) Unsecured protected health information
(1) Definition
(A) In general
Subject to subparagraph (B), for purposes of this section, the term "unsecured protected health information" means protected health information that is not secured through the use of a technology or methodology specified by the Secretary in the guidance issued under paragraph (2).
(B) Exception in case timely guidance not issued
In the case that the Secretary does not issue guidance under paragraph (2) by the date specified in such paragraph, for purposes of this section, the term "unsecured protected health information" shall mean protected health information that is not secured by a technology standard that renders protected health information unusable, unreadable, or indecipherable to unauthorized individuals and is developed or endorsed by a standards developing organization that is accredited by the American National Standards Institute.
(2) Guidance
For purposes of paragraph (1) and
(i) Report to Congress on breaches
(1) In general
Not later than 12 months after February 17, 2009, and annually thereafter, the Secretary shall prepare and submit to the Committee on Finance and the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Ways and Means and the Committee on Energy and Commerce of the House of Representatives a report containing the information described in paragraph (2) regarding breaches for which notice was provided to the Secretary under subsection (e)(3).
(2) Information
The information described in this paragraph regarding breaches specified in paragraph (1) shall include—
(A) the number and nature of such breaches; and
(B) actions taken in response to such breaches.
(j) Regulations; effective date
To carry out this section, the Secretary of Health and Human Services shall promulgate interim final regulations by not later than the date that is 180 days after February 17, 2009. The provisions of this section shall apply to breaches that are discovered on or after the date that is 30 days after the date of publication of such interim final regulations.
(
Editorial Notes
References in Text
Section 13101 of this Act, referred to in subsec. (h)(2), means section 13101 of div. A of
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 12 months after Feb. 17, 2009, except as otherwise specifically provided, see section 13423 of
1 So in orginal. Probably should be "then".
2 See References in Text note below.
§17933. Education on health information privacy
(a) Regional office privacy advisors
Not later than 6 months after February 17, 2009, the Secretary shall designate an individual in each regional office of the Department of Health and Human Services to offer guidance and education to covered entities, business associates, and individuals on their rights and responsibilities related to Federal privacy and security requirements for protected health information.
(b) Education initiative on uses of health information
Not later than 12 months after February 17, 2009, the Office for Civil Rights within the Department of Health and Human Services shall develop and maintain a multi-faceted national education initiative to enhance public transparency regarding the uses of protected health information, including programs to educate individuals about the potential uses of their protected health information, the effects of such uses, and the rights of individuals with respect to such uses. Such programs shall be conducted in a variety of languages and present information in a clear and understandable manner.
(
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 12 months after Feb. 17, 2009, except as otherwise specifically provided, see section 13423 of
§17934. Application of privacy provisions and penalties to business associates of covered entities
(a) Application of contract requirements
In the case of a business associate of a covered entity that obtains or creates protected health information pursuant to a written contract (or other written arrangement) described in section 164.502(e)(2) of title 45, Code of Federal Regulations, with such covered entity, the business associate may use and disclose such protected health information only if such use or disclosure, respectively, is in compliance with each applicable requirement of section 164.504(e) of such title. The additional requirements of this subchapter that relate to privacy and that are made applicable with respect to covered entities shall also be applicable to such a business associate and shall be incorporated into the business associate agreement between the business associate and the covered entity.
(b) Application of knowledge elements associated with contracts
Section 164.504(e)(1)(ii) of title 45, Code of Federal Regulations, shall apply to a business associate described in subsection (a), with respect to compliance with such subsection, in the same manner that such section applies to a covered entity, with respect to compliance with the standards in sections 164.502(e) and 164.504(e) of such title, except that in applying such section 164.504(e)(1)(ii) each reference to the business associate, with respect to a contract, shall be treated as a reference to the covered entity involved in such contract.
(c) Application of civil and criminal penalties
In the case of a business associate that violates any provision of subsection (a) or (b), the provisions of sections 1176 and 1177 of the Social Security Act (
(
Editorial Notes
References in Text
This subchapter, referred to in subsec. (a), was in the original "this subtitle", meaning subtitle D (§13400 et seq.) of title XIII of div. A of
The Social Security Act, referred to in subsec. (c), is act Aug. 14, 1935, ch. 531,
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 12 months after Feb. 17, 2009, except as otherwise specifically provided, see section 13423 of
§17935. Restrictions on certain disclosures and sales of health information; accounting of certain protected health information disclosures; access to certain information in electronic format
(a) Requested restrictions on certain disclosures of health information
In the case that an individual requests under paragraph (a)(1)(i)(A) of section 164.522 of title 45, Code of Federal Regulations, that a covered entity restrict the disclosure of the protected health information of the individual, notwithstanding paragraph (a)(1)(ii) of such section, the covered entity must comply with the requested restriction if—
(1) except as otherwise required by law, the disclosure is to a health plan for purposes of carrying out payment or health care operations (and is not for purposes of carrying out treatment); and
(2) the protected health information pertains solely to a health care item or service for which the health care provider involved has been paid out of pocket in full.
(b) Disclosures required to be limited to the limited data set or the minimum necessary
(1) In general
(A) In general
Subject to subparagraph (B), a covered entity shall be treated as being in compliance with section 164.502(b)(1) of title 45, Code of Federal Regulations, with respect to the use, disclosure, or request of protected health information described in such section, only if the covered entity limits such protected health information, to the extent practicable, to the limited data set (as defined in section 164.514(e)(2) of such title) or, if needed by such entity, to the minimum necessary to accomplish the intended purpose of such use, disclosure, or request, respectively.
(B) Guidance
Not later than 18 months after February 17, 2009, the Secretary shall issue guidance on what constitutes "minimum necessary" for purposes of subpart E of part 164 of title 45, Code of Federal Regulation.1 In issuing such guidance the Secretary shall take into consideration the guidance under
(C) Sunset
Subparagraph (A) shall not apply on and after the effective date on which the Secretary issues the guidance under subparagraph (B).
(2) Determination of minimum necessary
For purposes of paragraph (1), in the case of the disclosure of protected health information, the covered entity or business associate disclosing such information shall determine what constitutes the minimum necessary to accomplish the intended purpose of such disclosure.
(3) Application of exceptions
The exceptions described in section 164.502(b)(2) of title 45, Code of Federal Regulations, shall apply to the requirement under paragraph (1) as of the effective date described in section 13423 2 in the same manner that such exceptions apply to section 164.502(b)(1) of such title before such date.
(4) Rule of construction
Nothing in this subsection shall be construed as affecting the use, disclosure, or request of protected health information that has been de-identified.
(c) Accounting of certain protected health information disclosures required if covered entity uses electronic health record
(1) In general
In applying section 164.528 of title 45, Code of Federal Regulations, in the case that a covered entity uses or maintains an electronic health record with respect to protected health information—
(A) the exception under paragraph (a)(1)(i) of such section shall not apply to disclosures through an electronic health record made by such entity of such information; and
(B) an individual shall have a right to receive an accounting of disclosures described in such paragraph of such information made by such covered entity during only the three years prior to the date on which the accounting is requested.
(2) Regulations
The Secretary shall promulgate regulations on what information shall be collected about each disclosure referred to in paragraph (1), not later than 6 months after the date on which the Secretary adopts standards on accounting for disclosure described in the 3
(3) Process
In response to an 4 request from an individual for an accounting, a covered entity shall elect to provide either an—
(A) accounting, as specified under paragraph (1), for disclosures of protected health information that are made by such covered entity and by a business associate acting on behalf of the covered entity; or
(B) accounting, as specified under paragraph (1), for disclosures that are made by such covered entity and provide a list of all business associates acting on behalf of the covered entity, including contact information for such associates (such as mailing address, phone, and email address).
A business associate included on a list under subparagraph (B) shall provide an accounting of disclosures (as required under paragraph (1) for a covered entity) made by the business associate upon a request made by an individual directly to the business associate for such an accounting.
(4) Effective date
(A) Current users of electronic records
In the case of a covered entity insofar as it acquired an electronic health record as of January 1, 2009, paragraph (1) shall apply to disclosures, with respect to protected health information, made by the covered entity from such a record on and after January 1, 2014.
(B) Others
In the case of a covered entity insofar as it acquires an electronic health record after January 1, 2009, paragraph (1) shall apply to disclosures, with respect to protected health information, made by the covered entity from such record on and after the later of the following:
(i) January 1, 2011; or
(ii) the date that it acquires an electronic health record.
(C) Later date
The Secretary may set an effective date that is later that 5 the date specified under subparagraph (A) or (B) if the Secretary determines that such later date is necessary, but in no case may the date specified under—
(i) subparagraph (A) be later than 2016; or
(ii) subparagraph (B) be later than 2013.
(d) Prohibition on sale of electronic health records or protected health information
(1) In general
Except as provided in paragraph (2), a covered entity or business associate shall not directly or indirectly receive remuneration in exchange for any protected health information of an individual unless the covered entity obtained from the individual, in accordance with section 164.508 of title 45, Code of Federal Regulations, a valid authorization that includes, in accordance with such section, a specification of whether the protected health information can be further exchanged for remuneration by the entity receiving protected health information of that individual.
(2) Exceptions
Paragraph (1) shall not apply in the following cases:
(A) The purpose of the exchange is for public health activities (as described in section 164.512(b) of title 45, Code of Federal Regulations).
(B) The purpose of the exchange is for research (as described in sections 164.501 and 164.512(i) of title 45, Code of Federal Regulations) and the price charged reflects the costs of preparation and transmittal of the data for such purpose.
(C) The purpose of the exchange is for the treatment of the individual, subject to any regulation that the Secretary may promulgate to prevent protected health information from inappropriate access, use, or disclosure.
(D) The purpose of the exchange is the health care operation specifically described in subparagraph (iv) of paragraph (6) of the definition of healthcare operations in section 164.501 of title 45, Code of Federal Regulations.
(E) The purpose of the exchange is for remuneration that is provided by a covered entity to a business associate for activities involving the exchange of protected health information that the business associate undertakes on behalf of and at the specific request of the covered entity pursuant to a business associate agreement.
(F) The purpose of the exchange is to provide an individual with a copy of the individual's protected health information pursuant to section 164.524 of title 45, Code of Federal Regulations.
(G) The purpose of the exchange is otherwise determined by the Secretary in regulations to be similarly necessary and appropriate as the exceptions provided in subparagraphs (A) through (F).
(3) Regulations
Not later than 18 months after February 17, 2009, the Secretary shall promulgate regulations to carry out this subsection. In promulgating such regulations, the Secretary—
(A) shall evaluate the impact of restricting the exception described in paragraph (2)(A) to require that the price charged for the purposes described in such paragraph reflects the costs of the preparation and transmittal of the data for such purpose, on research or public health activities, including those conducted by or for the use of the Food and Drug Administration; and
(B) may further restrict the exception described in paragraph (2)(A) to require that the price charged for the purposes described in such paragraph reflects the costs of the preparation and transmittal of the data for such purpose, if the Secretary finds that such further restriction will not impede such research or public health activities.
(4) Effective date
Paragraph (1) shall apply to exchanges occurring on or after the date that is 6 months after the date of the promulgation of final regulations implementing this subsection.
(e) Access to certain information in electronic format
In applying section 164.524 of title 45, Code of Federal Regulations, in the case that a covered entity uses or maintains an electronic health record with respect to protected health information of an individual—
(1) the individual shall have a right to obtain from such covered entity a copy of such information in an electronic format and, if the individual chooses, to direct the covered entity to transmit such copy directly to an entity or person designated by the individual, provided that any such choice is clear, conspicuous, and specific;
(2) if the individual makes a request to a business associate for access to, or a copy of, protected health information about the individual, or if an individual makes a request to a business associate to grant such access to, or transmit such copy directly to, a person or entity designated by the individual, a business associate may provide the individual with such access or copy, which may be in an electronic form, or grant or transmit such access or copy to such person or entity designated by the individual; and
(3) notwithstanding paragraph (c)(4) of such section, any fee that the covered entity may impose for providing such individual with a copy of such information (or a summary or explanation of such information) if such copy (or summary or explanation) is in an electronic form shall not be greater than the entity's labor costs in responding to the request for the copy (or summary or explanation).
(
Editorial Notes
References in Text
Section 13423, referred to in subsec. (b)(3), means section 13423 of div. A of
Amendments
2016—Subsec. (e)(2), (3).
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 12 months after Feb. 17, 2009, except as otherwise specifically provided, see section 13423 of
1 So in original. Probably should be "Regulations."
2 See References in Text note below.
4 So in original. Probably should be "a".
5 So in original. Probably should be "than".
§17936. Conditions on certain contacts as part of health care operations
(a) Marketing
(1) In general
A communication by a covered entity or business associate that is about a product or service and that encourages recipients of the communication to purchase or use the product or service shall not be considered a health care operation for purposes of subpart E of part 164 of title 45, Code of Federal Regulations, unless the communication is made as described in subparagraph (i), (ii), or (iii) of paragraph (1) of the definition of marketing in section 164.501 of such title.
(2) Payment for certain communications
A communication by a covered entity or business associate that is described in subparagraph (i), (ii), or (iii) of paragraph (1) of the definition of marketing in section 164.501 of title 45, Code of Federal Regulations, shall not be considered a health care operation for purposes of subpart E of part 164 of title 45, Code of Federal Regulations if the covered entity receives or has received direct or indirect payment in exchange for making such communication, except where—
(A)(i) such communication describes only a drug or biologic that is currently being prescribed for the recipient of the communication; and
(ii) any payment received by such covered entity in exchange for making a communication described in clause (i) is reasonable in amount;
(B) each of the following conditions apply—
(i) the communication is made by the covered entity; and
(ii) the covered entity making such communication obtains from the recipient of the communication, in accordance with section 164.508 of title 45, Code of Federal Regulations, a valid authorization (as described in paragraph (b) of such section) with respect to such communication; or
(C) each of the following conditions apply—
(i) the communication is made by a business associate on behalf of the covered entity; and
(ii) the communication is consistent with the written contract (or other written arrangement described in section 164.502(e)(2) of such title) between such business associate and covered entity.
(3) Reasonable in amount defined
For purposes of paragraph (2), the term "reasonable in amount" shall have the meaning given such term by the Secretary by regulation.
(4) Direct or indirect payment
For purposes of paragraph (2), the term "direct or indirect payment" shall not include any payment for treatment (as defined in section 164.501 of title 45, Code of Federal Regulations) of an individual.
(b) Opportunity to opt out of fundraising
The Secretary shall by rule provide that any written fundraising communication that is a healthcare operation as defined under section 164.501 of title 45, Code of Federal Regulations, shall, in a clear and conspicuous manner, provide an opportunity for the recipient of the communications to elect not to receive any further such communication. When an individual elects not to receive any further such communication, such election shall be treated as a revocation of authorization under section 164.508 of title 45, Code of Federal Regulations.
(c) Effective date
This section shall apply to written communications occurring on or after the effective date specified under section 13423.1
(
Editorial Notes
References in Text
Section 13423, referred to in subsec. (c), means section 13423 of div. A of
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 12 months after Feb. 17, 2009, except as otherwise specifically provided, see section 13423 of
1 See References in Text note below.
§17937. Temporary breach notification requirement for vendors of personal health records and other non-HIPAA covered entities
(a) In general
In accordance with subsection (c), each vendor of personal health records, following the discovery of a breach of security of unsecured PHR identifiable health information that is in a personal health record maintained or offered by such vendor, and each entity described in clause (ii), (iii), or (iv) of
(1) notify each individual who is a citizen or resident of the United States whose unsecured PHR identifiable health information was acquired by an unauthorized person as a result of such a breach of security; and
(2) notify the Federal Trade Commission.
(b) Notification by third party service providers
A third party service provider that provides services to a vendor of personal health records or to an entity described in clause (ii), (iii).1 or (iv) of
(c) Application of requirements for timeliness, method, and content of notifications
Subsections (c), (d), (e), and (f) of
(d) Notification of the Secretary
Upon receipt of a notification of a breach of security under subsection (a)(2), the Federal Trade Commission shall notify the Secretary of such breach.
(e) Enforcement
A violation of subsection (a) or (b) shall be treated as an unfair and deceptive act or practice in violation of a regulation under
(f) Definitions
For purposes of this section:
(1) Breach of security
The term "breach of security" means, with respect to unsecured PHR identifiable health information of an individual in a personal health record, acquisition of such information without the authorization of the individual.
(2) PHR identifiable health information
The term "PHR identifiable health information" means individually identifiable health information, as defined in
(A) that is provided by or on behalf of the individual; and
(B) that identifies the individual or with respect to which there is a reasonable basis to believe that the information can be used to identify the individual.
(3) Unsecured PHR identifiable health information
(A) In general
Subject to subparagraph (B), the term "unsecured PHR identifiable health information" means PHR identifiable health information that is not protected through the use of a technology or methodology specified by the Secretary in the guidance issued under
(B) Exception in case timely guidance not issued
In the case that the Secretary does not issue guidance under
(g) Regulations; effective date; sunset
(1) Regulations; effective date
To carry out this section, the Federal Trade Commission shall promulgate interim final regulations by not later than the date that is 180 days after February 17, 2009. The provisions of this section shall apply to breaches of security that are discovered on or after the date that is 30 days after the date of publication of such interim final regulations.
(2) Sunset
If Congress enacts new legislation establishing requirements for notification in the case of a breach of security, that apply to entities that are not covered entities or business associates, the provisions of this section shall not apply to breaches of security discovered on or after the effective date of regulations implementing such legislation.
(
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 12 months after Feb. 17, 2009, except as otherwise specifically provided, see section 13423 of
1 So in original. The period probably should be a comma.
§17938. Business associate contracts required for certain entities
Each organization, with respect to a covered entity, that provides data transmission of protected health information to such entity (or its business associate) and that requires access on a routine basis to such protected health information, such as a Health Information Exchange Organization, Regional Health Information Organization, E-prescribing Gateway, or each vendor that contracts with a covered entity to allow that covered entity to offer a personal health record to patients as part of its electronic health record, is required to enter into a written contract (or other written arrangement) described in section 164.502(e)(2) of title 45, Code of Federal Regulations and a written contract (or other arrangement) described in section 164.308(b) of such title, with such entity and shall be treated as a business associate of the covered entity for purposes of the provisions of this subchapter and subparts C and E of part 164 of title 45, Code of Federal Regulations, as such provisions are in effect as of February 17, 2009.
(
Editorial Notes
References in Text
This subchapter, referred to in text, was in the original "this subtitle", meaning subtitle D (§13400 et seq.) of title XIII of div. A of
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 12 months after Feb. 17, 2009, except as otherwise specifically provided, see section 13423 of
§17939. Improved enforcement
(a) In general
(1) Omitted
(2) Enforcement under Social Security Act
Any violation by a covered entity under thus 1 subchapter is subject to enforcement and penalties under section 2 1176 and 1177 of the Social Security Act [
(b) Effective date; regulations
(1) The amendments made by subsection (a) shall apply to penalties imposed on or after the date that is 24 months after February 17, 2009.
(2) Not later than 18 months after February 17, 2009, the Secretary of Health and Human Services shall promulgate regulations to implement such amendments.
(c) Distribution of certain civil monetary penalties collected
(1) In general
Subject to the regulation promulgated pursuant to paragraph (3), any civil monetary penalty or monetary settlement collected with respect to an offense punishable under this subchapter or section 1176 of the Social Security Act (
(2) GAO report
Not later than 18 months after February 17, 2009, the Comptroller General shall submit to the Secretary a report including recommendations for a methodology under which an individual who is harmed by an act that constitutes an offense referred to in paragraph (1) may receive a percentage of any civil monetary penalty or monetary settlement collected with respect to such offense.
(3) Establishment of methodology to distribute percentage of CMPS collected to harmed individuals
Not later than 3 years after February 17, 2009, the Secretary shall establish by regulation and based on the recommendations submitted under paragraph (2), a methodology under which an individual who is harmed by an act that constitutes an offense referred to in paragraph (1) may receive a percentage of any civil monetary penalty or monetary settlement collected with respect to such offense.
(4) Application of methodology
The methodology under paragraph (3) shall be applied with respect to civil monetary penalties or monetary settlements imposed on or after the effective date of the regulation.
(d) Tiered increase in amount of civil monetary penalties
(1) to (3) Omitted
(4) Effective date
The amendments made by this subsection shall apply to violations occurring after February 17, 2009.
(e) Enforcement through State attorneys general
(1), (2) Omitted
(3) Effective date
The amendments made by this subsection shall apply to violations occurring after February 17, 2009.
(
Editorial Notes
References in Text
This subchapter, referred to in subsecs. (a)(2) and (c)(1), was in the original "this subtitle", meaning subtitle D (§13400 et seq.) of title XIII of div. A of
For reference to "the amendments made by subsection (a)" in subsec. (b)(1) and "the amendments made by this subsection" in subsecs. (d)(4) and (e)(3), see Codification note below.
Codification
Section is comprised of section 13410 of
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 12 months after Feb. 17, 2009, except as otherwise specifically provided, see section 13423 of
1 So in original. Probably should be "this".
2 So in original. Probably should be "sections".
§17940. Audits
The Secretary shall provide for periodic audits to ensure that covered entities and business associates that are subject to the requirements of this subchapter and subparts C and E of part 164 of title 45, Code of Federal Regulations, as such provisions are in effect as of February 17, 2009, comply with such requirements.
(
Editorial Notes
References in Text
This subchapter, referred to in text, was in the original "this subtitle", meaning subtitle D (§13400 et seq.) of title XIII of div. A of
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 12 months after Feb. 17, 2009, except as otherwise specifically provided, see section 13423 of
§17941. Recognition of security practices
(a) In general
Consistent with the authority of the Secretary under
(1) mitigate fines under
(2) result in the early, favorable termination of an audit under
(3) mitigate the remedies that would otherwise be agreed to in any agreement with respect to resolving potential violations of the HIPAA Security rule (part 160 of title 45 Code of Federal Regulations and subparts A and C of part 164 of such title) between the covered entity or business associate and the Department of Health and Human Services.
(b) Definition and miscellaneous provisions
(1) Recognized security practices
The term "recognized security practices" means the standards, guidelines, best practices, methodologies, procedures, and processes developed under
(2) Limitation
Nothing in this section shall be construed as providing the Secretary authority to increase fines under
(3) No liability for nonparticipation
Subject to paragraph (4), nothing in this section shall be construed to subject a covered entity or business associate to liability for electing not to engage in the recognized security practices defined by this section.
(4) Rule of construction
Nothing in this section shall be construed to limit the Secretary's authority to enforce the HIPAA Security rule (part 160 of title 45 Code of Federal Regulations and subparts A and C of part 164 of such title), or to supersede or conflict with an entity or business associate's obligations under the HIPAA Security rule.
(