Are The New York Department of Health’s New Breach Notification Requirements for Healthcare Providers Actually Authorized?

Early last week, a letter from the New York Department of Health was issued to Administrators and Technology Officers in the Healthcare Industry in New York, which states, essentially, that the NYDOH has implemented a new notification protocol in the event of a data breach at a healthcare facility.

The letter states “We recognize that providers must contact various other agencies in this type of event, such as local law enforcement. The Department, in collaboration with partner agencies, has been able to provide significant assistance to providers in recent cyber security events. Our timely awareness of this type of event enhances our ability to help mitigate the impact of the event and protect our healthcare system and the public health.”

The new protocol is directed to hospitals, nursing homes, diagnostic and treatment centers, adult care facilities, home health agencies, hospices, and licensed home care services agencies.

The letter goes on to note that “Providers should ensure they make any other notifications regarding emergency events that are already required under statute or regulation. For example, a cyber security event should be reported to the New York Patient Occurrence Reporting and Tracking System (NYPORTS), under Detail Code 932.”

Now, I might be accused of being late to the party on this one, since the letter appears to have gone out August 12th. But, surprisingly, I’ve seen almost no coverage of this change, other than here. So, I can probably be forgiven for being slow on the uptake with this one.

I reached out to the DOH regarding what authority or regulation they are relying on to implement this new requirement. Again, I may be slow on the uptake.

According to N.Y. Gen. Bus. Law § 899-aa, “In the event that any New York residents are to be notified, the person or business shall notify the state attorney general, the department of state and the division of state police as to the timing, content and distribution of the notices and approximate number of affected persons.  Such notice shall be made without delaying notice to affected New York residents.” So, that doesn’t say anything about notifying the DOH. Conversely, HIPAA is a federal law, and that requires notification to federal agencies of a breach. New York Public Health Law – PBH § 2805-l deals with reporting to DOH of adverse events, but its definition does not appear to contemplate data breaches as adverse events either.

Title 10, New York Code, Rules and Regulations 405.8 states “(13) disasters or other emergency situations external to the hospital environment which affect hospital operations;” calls for adverse event reporting. This seems overly broad if it is meant to apply to a data breach. Before I stick my foot any further in my mouth, I will admit that I am not a healthcare expert, and maybe there is a clear blue law that authorizes this new protocol. I just haven’t seen what that is yet. I’ll put a pin in this one and see if I can find out.

The reason why I bring it up is two fold:

  1. It seems fishy to me that the letter does not cite any statute of regulation on which it relies for the change in authority. That is somewhat unusual in my experience. That is potentially an issue because If you’ve got agencies that are changing requirements willy nilly, it creates a nearly impossible set of rules to follow (which are likely to be unfair, and not fully vetted in the comment process). It’s going to spell disaster for some poor healthcare facility, and many of those are small businesses.
  2. The letter seems to suggest some not so great advice as well, as it appears to suggest that your first call should be to DOH. Yes, it acknowledges that you have other legal obligations as well (and this is where it maybe this falls under the adverse event reporting requirement), but it ignores a really major issue. So, without further ado, here is some FREE LEGAL ADVICE in the event that your healthcare facility has a data breach: Before you make statements to a public agency about your breach, talk to a lawyer who specializes in this stuff. Doesn’t have to be me, but talk to someone.

Would definitely like to hear from friends and colleagues on this one.

Update: August 30, 2019. It’s been about a week and I have not heard back on my request from the Department of Health as to the basis of their direction in the letter.

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