bmad-plus 0.7.5 → 0.9.0

package/src/bmad-plus/packs/pack-shield/references/hipaa-compliance/breach-notification.md

@@ -1,293 +1,293 @@
-# HIPAA Breach Notification Rule Reference
-## 45 CFR Part 164, Subpart D (HITECH / 2009)
-
----
-
-## Table of Contents
-1. [What is a Breach?](#1-what-is-a-breach)
-2. [Breach Risk Assessment (4-Factor Test)](#2-breach-risk-assessment-4-factor-test)
-3. [Notification to Individuals](#3-notification-to-individuals)
-4. [Notification to HHS](#4-notification-to-hhs)
-5. [Notification to Media](#5-notification-to-media)
-6. [Business Associate Obligations](#6-business-associate-obligations)
-7. [Documentation Requirements](#7-documentation-requirements)
-8. [Penalties & Enforcement](#8-penalties--enforcement)
-9. [Breach Response Workflow](#9-breach-response-workflow)
-10. [Common Breach Scenarios](#10-common-breach-scenarios)
-
----
-
-## 1. What is a Breach?
-
-### Definition (§164.402):
-A **breach** is the acquisition, access, use, or disclosure of PHI in a manner not permitted under the Privacy Rule that compromises the security or privacy of the PHI.
-
-### Three Exceptions — These Are NOT Breaches:
-1. **Unintentional access** by workforce member acting in good faith within scope of authority — if no further use/disclosure
-2. **Inadvertent disclosure** between authorized persons at the CE/BA — if no further use/disclosure
-3. **Good faith belief** that unauthorized person who received PHI could not have retained it (e.g., misdirected fax that was immediately returned/destroyed)
-
-### Presumption:
-**Assume it's a breach unless the CE/BA demonstrates low probability that PHI has been compromised** using the 4-Factor Risk Assessment.
-
----
-
-## 2. Breach Risk Assessment (4-Factor Test)
-### §164.402(2)
-
-To rebut the presumption of a breach, document a risk assessment considering:
-
-### Factor 1: Nature and Extent of PHI Involved
-- What types of identifiers were included?
-- Was financial information involved (SSN, credit card, bank account)?
-- Was clinical information included (diagnosis, treatment, medication)?
-- Higher sensitivity = higher likelihood of compromise
-
-### Factor 2: Who Unauthorized Person Was
-- Was it another CE or BA (who would understand privacy obligations)?
-- Was it a member of the public?
-- Was it a malicious actor vs. inadvertent recipient?
-- Known or unknown recipient?
-
-### Factor 3: Whether PHI Was Actually Acquired or Viewed
-- Did the unauthorized person actually access the information?
-- Was the email read? Was the USB drive opened?
-- Technical evidence (email delivery receipts, server logs)?
-- Attestation from recipient that they did not view/retain?
-
-### Factor 4: Extent to Which Risk Has Been Mitigated
-- Was the PHI retrieved/destroyed?
-- Did recipient sign a confidentiality agreement?
-- Did recipient provide credible assurance of destruction?
-
-### Assessment Outcome:
-- **Low probability of compromise** → Not a reportable breach (document your reasoning thoroughly)
-- **Cannot demonstrate low probability** → Treat as reportable breach
-
-> **Important**: HHS scrutinizes risk assessments. Document contemporaneously, thoroughly, and honestly. A weak or post-hoc justification is worse than treating the incident as a breach.
-
-### Safe Harbor — Encryption:
-If PHI was **encrypted** using NIST-approved methods AND the encryption key was not also compromised → **Not a reportable breach** (§164.402(2) exception).
-- Acceptable: AES-128+, NIST FIPS 140-2 validated
-- Must maintain documentation of encryption
-
----
-
-## 3. Notification to Individuals
-### §164.404
-
-### Timeline:
-**Without unreasonable delay AND within 60 calendar days** of discovery of the breach.
-
-Discovery = when CE/BA knew or should have known of the breach (not when investigation concludes).
-
-### Method:
-- **First choice**: Written notice by **first-class mail** to last known address
-- **If email on file and individual agreed to electronic notice**: Email acceptable
-- **If contact info insufficient or out-of-date** (10+ individuals): Substitute notice:
-  - Prominent posting on website homepage for 90 days + toll-free number, OR
-  - Major print/broadcast media in affected area
-- **Urgent situations** (imminent misuse risk): Phone or other means in addition to written notice
-
-### Required Content of Individual Notice (§164.404(c)):
-1. Brief description of what happened (date of breach, date of discovery if known)
-2. Description of types of PHI involved
-3. Steps individuals should take to protect themselves
-4. Brief description of what CE is doing to investigate, mitigate, and prevent recurrence
-5. Contact info (toll-free number, email, website, or postal address)
-
----
-
-## 4. Notification to HHS
-### §164.408
-
-### Timeline Depends on Breach Size:
-
-| Affected Individuals | HHS Notification Deadline |
-|---------------------|--------------------------|
-| **500 or more** in a state/jurisdiction | **Simultaneously with individual notice** (within 60 days of discovery) |
-| **Fewer than 500** | **Annual log** — submit within 60 days after end of calendar year |
-
-### How to Submit:
-- HHS Breach Reporting Portal: www.hhs.gov/hipaa/for-professionals/breach-notification/
-- Breaches of 500+ are posted on HHS "Wall of Shame" (public)
-
-### Required Information for HHS Report:
-- Name of CE
-- Contact information
-- Type of breach (theft, loss, unauthorized access/disclosure, hacking, improper disposal, other)
-- Location of breached information (laptop, paper, EHR, email, other)
-- Number of individuals affected
-- Date of breach
-- Date of discovery
-- Description of PHI types involved
-- Description of safeguards in place
-- Actions taken in response
-
----
-
-## 5. Notification to Media
-### §164.406
-
-### Required When:
-Breach affects **500 or more residents** of a **state or jurisdiction**.
-
-### Timeline:
-Without unreasonable delay and within **60 calendar days** of discovery.
-
-### Method:
-Notify prominent media outlets serving the affected state/jurisdiction (e.g., major newspaper, TV station).
-
-### Content:
-Same as individual notification content.
-
-> Note: Media notification is IN ADDITION to individual and HHS notification — not a substitute.
-
----
-
-## 6. Business Associate Obligations
-### §164.410
-
-### BA Must Notify CE:
-- **Without unreasonable delay** and within **60 calendar days** of discovery
-- BA discovery = when any employee, officer, or agent of BA knows (or should know)
-
-### What BA Must Provide to CE:
-- Identity of each individual affected (if known)
-- All information needed for CE to provide required notifications
-
-### CE Remains Responsible:
-- The CE must send notifications to individuals, HHS, and media
-- CE's 60-day clock runs from CE's discovery OR BA's notification (whichever is earlier)
-- CE and BA should establish clear breach notification obligations in BAA
-
-### BA-to-Subcontractor:
-- Subcontractors of BAs must notify the BA (same timeline)
-- Chain of notification flows up: Subcontractor → BA → CE
-
----
-
-## 7. Documentation Requirements
-### §164.414
-
-### Must Maintain Documentation of:
-- Risk assessments for incidents (justifying breach vs. non-breach determination)
-- All notifications sent (copies)
-- Dates notifications were sent
-- Substitute notice postings
-- HHS reports submitted
-- Media notifications
-
-### Retention: 6 years from creation or last effective date
-
-### Best Practice — Incident Log:
-Maintain a running log of all security incidents (whether or not they rise to reportable breach level). Useful for:
-- Demonstrating Security Rule compliance (§164.308(a)(6))
-- Pattern identification
-- HHS investigations
-- Annual HHS small breach reporting
-
----
-
-## 8. Penalties & Enforcement
-### HITECH / §160.404
-
-### Civil Money Penalties (CMPs):
-
-| Violation Category | Per Violation | Calendar Year Cap |
-|-------------------|--------------|-------------------|
-| Did not know (reasonable diligence) | $137 – $68,928 | $2,067,813 |
-| Reasonable cause (not willful neglect) | $1,379 – $68,928 | $2,067,813 |
-| Willful neglect — corrected | $13,785 – $68,928 | $2,067,813 |
-| Willful neglect — not corrected | $68,928 – $2,067,813 | $2,067,813 |
-
-> Note: Penalty amounts are adjusted annually for inflation (figures above are approximate 2024 levels).
-
-### Criminal Penalties (§1320d-6):
-- Knowingly obtaining/disclosing PHI: Up to $50,000 + 1 year imprisonment
-- Under false pretenses: Up to $100,000 + 5 years
-- With intent to sell/transfer/use for commercial advantage: Up to $250,000 + 10 years
-
-### State Attorneys General:
-- May bring civil actions for HIPAA violations on behalf of state residents
-- May obtain $100/violation, up to $25,000/year per violation category (pre-inflation)
-
-### HHS Enforcement Priorities (Historical):
-- Risk analysis failures (most common)
-- Access control deficiencies
-- Insufficient encryption (not implementing addressable standard)
-- Business Associate Agreement failures
-- Insufficient audit logging
-- Failure to timely notify of breaches
-
----
-
-## 9. Breach Response Workflow
-
-```
-INCIDENT DETECTED
-      │
-      ▼
-STEP 1: CONTAINMENT (Immediate)
-- Isolate affected systems
-- Preserve evidence (logs, screenshots)
-- Prevent further unauthorized access
-- Assign incident response team
-      │
-      ▼
-STEP 2: INVESTIGATION (Days 1-14)
-- What PHI was involved? (types, quantity)
-- When did breach occur? When discovered?
-- Who was affected (individuals)?
-- How did breach occur?
-- Was encryption in place?
-      │
-      ▼
-STEP 3: RISK ASSESSMENT (Days 1-30)
-- Apply 4-Factor Test (see Section 2)
-- Document analysis contemporaneously
-- Determine: Reportable Breach or Not?
-      │
-      ├─ NOT A BREACH ──→ Document findings; close incident; review safeguards
-      │
-      ▼
-STEP 4: IF REPORTABLE BREACH
-      │
-      ├─ Notify INDIVIDUALS within 60 days of discovery
-      ├─ Notify HHS:
-      │    ├─ 500+ affected: Within 60 days of discovery
-      │    └─ <500 affected: Add to annual log; report by Mar 1 of following year
-      └─ Notify MEDIA if 500+ residents in a state/jurisdiction
-      │
-      ▼
-STEP 5: REMEDIATION
-- Address root cause
-- Enhance safeguards
-- Update policies/procedures
-- Retrain workforce
-- Update Risk Analysis
-      │
-      ▼
-STEP 6: DOCUMENTATION
-- Incident report with all details
-- Risk assessment documentation
-- Copies of all notifications sent
-- Remediation steps taken
-```
-
----
-
-## 10. Common Breach Scenarios
-
-| Scenario | Breach? | Key Considerations |
-|----------|---------|-------------------|
-| Laptop with unencrypted PHI stolen | **Yes** (unless risk assessment rebuts) | Encryption safe harbor doesn't apply; document risk assessment |
-| Encrypted laptop stolen | **Likely not** | Confirm encryption was FIPS 140-2 compliant; document |
-| Email with PHI sent to wrong patient | **Risk assess** | Did recipient view it? Can they be contacted to confirm deletion? |
-| PHI mailed to wrong address | **Risk assess** | Was it returned unopened? Could recipient have retained it? |
-| Employee snoops on celebrity patient records | **Yes** | Workforce members are authorized users but this is impermissible access |
-| Ransomware encrypts ePHI | **Likely yes** | Access/acquisition occurred; must conduct risk assessment; difficult to rebut |
-| Vendor (BA) has breach | **Yes** | BA must notify CE; CE must notify individuals within 60 days |
-| PHI posted on social media by employee | **Yes** | Impermissible disclosure; high severity |
-| Paper PHI left in unsecured area briefly | **Risk assess** | Was it accessed? By whom? Mitigated? |
-| Verbal disclosure of PHI to wrong party | **Privacy Rule** (not Security Rule) | Breach Notification applies to PHI broadly, not just ePHI |
+# HIPAA Breach Notification Rule Reference
+## 45 CFR Part 164, Subpart D (HITECH / 2009)
+
+---
+
+## Table of Contents
+1. [What is a Breach?](#1-what-is-a-breach)
+2. [Breach Risk Assessment (4-Factor Test)](#2-breach-risk-assessment-4-factor-test)
+3. [Notification to Individuals](#3-notification-to-individuals)
+4. [Notification to HHS](#4-notification-to-hhs)
+5. [Notification to Media](#5-notification-to-media)
+6. [Business Associate Obligations](#6-business-associate-obligations)
+7. [Documentation Requirements](#7-documentation-requirements)
+8. [Penalties & Enforcement](#8-penalties--enforcement)
+9. [Breach Response Workflow](#9-breach-response-workflow)
+10. [Common Breach Scenarios](#10-common-breach-scenarios)
+
+---
+
+## 1. What is a Breach?
+
+### Definition (§164.402):
+A **breach** is the acquisition, access, use, or disclosure of PHI in a manner not permitted under the Privacy Rule that compromises the security or privacy of the PHI.
+
+### Three Exceptions — These Are NOT Breaches:
+1. **Unintentional access** by workforce member acting in good faith within scope of authority — if no further use/disclosure
+2. **Inadvertent disclosure** between authorized persons at the CE/BA — if no further use/disclosure
+3. **Good faith belief** that unauthorized person who received PHI could not have retained it (e.g., misdirected fax that was immediately returned/destroyed)
+
+### Presumption:
+**Assume it's a breach unless the CE/BA demonstrates low probability that PHI has been compromised** using the 4-Factor Risk Assessment.
+
+---
+
+## 2. Breach Risk Assessment (4-Factor Test)
+### §164.402(2)
+
+To rebut the presumption of a breach, document a risk assessment considering:
+
+### Factor 1: Nature and Extent of PHI Involved
+- What types of identifiers were included?
+- Was financial information involved (SSN, credit card, bank account)?
+- Was clinical information included (diagnosis, treatment, medication)?
+- Higher sensitivity = higher likelihood of compromise
+
+### Factor 2: Who Unauthorized Person Was
+- Was it another CE or BA (who would understand privacy obligations)?
+- Was it a member of the public?
+- Was it a malicious actor vs. inadvertent recipient?
+- Known or unknown recipient?
+
+### Factor 3: Whether PHI Was Actually Acquired or Viewed
+- Did the unauthorized person actually access the information?
+- Was the email read? Was the USB drive opened?
+- Technical evidence (email delivery receipts, server logs)?
+- Attestation from recipient that they did not view/retain?
+
+### Factor 4: Extent to Which Risk Has Been Mitigated
+- Was the PHI retrieved/destroyed?
+- Did recipient sign a confidentiality agreement?
+- Did recipient provide credible assurance of destruction?
+
+### Assessment Outcome:
+- **Low probability of compromise** → Not a reportable breach (document your reasoning thoroughly)
+- **Cannot demonstrate low probability** → Treat as reportable breach
+
+> **Important**: HHS scrutinizes risk assessments. Document contemporaneously, thoroughly, and honestly. A weak or post-hoc justification is worse than treating the incident as a breach.
+
+### Safe Harbor — Encryption:
+If PHI was **encrypted** using NIST-approved methods AND the encryption key was not also compromised → **Not a reportable breach** (§164.402(2) exception).
+- Acceptable: AES-128+, NIST FIPS 140-2 validated
+- Must maintain documentation of encryption
+
+---
+
+## 3. Notification to Individuals
+### §164.404
+
+### Timeline:
+**Without unreasonable delay AND within 60 calendar days** of discovery of the breach.
+
+Discovery = when CE/BA knew or should have known of the breach (not when investigation concludes).
+
+### Method:
+- **First choice**: Written notice by **first-class mail** to last known address
+- **If email on file and individual agreed to electronic notice**: Email acceptable
+- **If contact info insufficient or out-of-date** (10+ individuals): Substitute notice:
+  - Prominent posting on website homepage for 90 days + toll-free number, OR
+  - Major print/broadcast media in affected area
+- **Urgent situations** (imminent misuse risk): Phone or other means in addition to written notice
+
+### Required Content of Individual Notice (§164.404(c)):
+1. Brief description of what happened (date of breach, date of discovery if known)
+2. Description of types of PHI involved
+3. Steps individuals should take to protect themselves
+4. Brief description of what CE is doing to investigate, mitigate, and prevent recurrence
+5. Contact info (toll-free number, email, website, or postal address)
+
+---
+
+## 4. Notification to HHS
+### §164.408
+
+### Timeline Depends on Breach Size:
+
+| Affected Individuals | HHS Notification Deadline |
+|---------------------|--------------------------|
+| **500 or more** in a state/jurisdiction | **Simultaneously with individual notice** (within 60 days of discovery) |
+| **Fewer than 500** | **Annual log** — submit within 60 days after end of calendar year |
+
+### How to Submit:
+- HHS Breach Reporting Portal: www.hhs.gov/hipaa/for-professionals/breach-notification/
+- Breaches of 500+ are posted on HHS "Wall of Shame" (public)
+
+### Required Information for HHS Report:
+- Name of CE
+- Contact information
+- Type of breach (theft, loss, unauthorized access/disclosure, hacking, improper disposal, other)
+- Location of breached information (laptop, paper, EHR, email, other)
+- Number of individuals affected
+- Date of breach
+- Date of discovery
+- Description of PHI types involved
+- Description of safeguards in place
+- Actions taken in response
+
+---
+
+## 5. Notification to Media
+### §164.406
+
+### Required When:
+Breach affects **500 or more residents** of a **state or jurisdiction**.
+
+### Timeline:
+Without unreasonable delay and within **60 calendar days** of discovery.
+
+### Method:
+Notify prominent media outlets serving the affected state/jurisdiction (e.g., major newspaper, TV station).
+
+### Content:
+Same as individual notification content.
+
+> Note: Media notification is IN ADDITION to individual and HHS notification — not a substitute.
+
+---
+
+## 6. Business Associate Obligations
+### §164.410
+
+### BA Must Notify CE:
+- **Without unreasonable delay** and within **60 calendar days** of discovery
+- BA discovery = when any employee, officer, or agent of BA knows (or should know)
+
+### What BA Must Provide to CE:
+- Identity of each individual affected (if known)
+- All information needed for CE to provide required notifications
+
+### CE Remains Responsible:
+- The CE must send notifications to individuals, HHS, and media
+- CE's 60-day clock runs from CE's discovery OR BA's notification (whichever is earlier)
+- CE and BA should establish clear breach notification obligations in BAA
+
+### BA-to-Subcontractor:
+- Subcontractors of BAs must notify the BA (same timeline)
+- Chain of notification flows up: Subcontractor → BA → CE
+
+---
+
+## 7. Documentation Requirements
+### §164.414
+
+### Must Maintain Documentation of:
+- Risk assessments for incidents (justifying breach vs. non-breach determination)
+- All notifications sent (copies)
+- Dates notifications were sent
+- Substitute notice postings
+- HHS reports submitted
+- Media notifications
+
+### Retention: 6 years from creation or last effective date
+
+### Best Practice — Incident Log:
+Maintain a running log of all security incidents (whether or not they rise to reportable breach level). Useful for:
+- Demonstrating Security Rule compliance (§164.308(a)(6))
+- Pattern identification
+- HHS investigations
+- Annual HHS small breach reporting
+
+---
+
+## 8. Penalties & Enforcement
+### HITECH / §160.404
+
+### Civil Money Penalties (CMPs):
+
+| Violation Category | Per Violation | Calendar Year Cap |
+|-------------------|--------------|-------------------|
+| Did not know (reasonable diligence) | $137 – $68,928 | $2,067,813 |
+| Reasonable cause (not willful neglect) | $1,379 – $68,928 | $2,067,813 |
+| Willful neglect — corrected | $13,785 – $68,928 | $2,067,813 |
+| Willful neglect — not corrected | $68,928 – $2,067,813 | $2,067,813 |
+
+> Note: Penalty amounts are adjusted annually for inflation (figures above are approximate 2024 levels).
+
+### Criminal Penalties (§1320d-6):
+- Knowingly obtaining/disclosing PHI: Up to $50,000 + 1 year imprisonment
+- Under false pretenses: Up to $100,000 + 5 years
+- With intent to sell/transfer/use for commercial advantage: Up to $250,000 + 10 years
+
+### State Attorneys General:
+- May bring civil actions for HIPAA violations on behalf of state residents
+- May obtain $100/violation, up to $25,000/year per violation category (pre-inflation)
+
+### HHS Enforcement Priorities (Historical):
+- Risk analysis failures (most common)
+- Access control deficiencies
+- Insufficient encryption (not implementing addressable standard)
+- Business Associate Agreement failures
+- Insufficient audit logging
+- Failure to timely notify of breaches
+
+---
+
+## 9. Breach Response Workflow
+
+```
+INCIDENT DETECTED
+      │
+      ▼
+STEP 1: CONTAINMENT (Immediate)
+- Isolate affected systems
+- Preserve evidence (logs, screenshots)
+- Prevent further unauthorized access
+- Assign incident response team
+      │
+      ▼
+STEP 2: INVESTIGATION (Days 1-14)
+- What PHI was involved? (types, quantity)
+- When did breach occur? When discovered?
+- Who was affected (individuals)?
+- How did breach occur?
+- Was encryption in place?
+      │
+      ▼
+STEP 3: RISK ASSESSMENT (Days 1-30)
+- Apply 4-Factor Test (see Section 2)
+- Document analysis contemporaneously
+- Determine: Reportable Breach or Not?
+      │
+      ├─ NOT A BREACH ──→ Document findings; close incident; review safeguards
+      │
+      ▼
+STEP 4: IF REPORTABLE BREACH
+      │
+      ├─ Notify INDIVIDUALS within 60 days of discovery
+      ├─ Notify HHS:
+      │    ├─ 500+ affected: Within 60 days of discovery
+      │    └─ <500 affected: Add to annual log; report by Mar 1 of following year
+      └─ Notify MEDIA if 500+ residents in a state/jurisdiction
+      │
+      ▼
+STEP 5: REMEDIATION
+- Address root cause
+- Enhance safeguards
+- Update policies/procedures
+- Retrain workforce
+- Update Risk Analysis
+      │
+      ▼
+STEP 6: DOCUMENTATION
+- Incident report with all details
+- Risk assessment documentation
+- Copies of all notifications sent
+- Remediation steps taken
+```
+
+---
+
+## 10. Common Breach Scenarios
+
+| Scenario | Breach? | Key Considerations |
+|----------|---------|-------------------|
+| Laptop with unencrypted PHI stolen | **Yes** (unless risk assessment rebuts) | Encryption safe harbor doesn't apply; document risk assessment |
+| Encrypted laptop stolen | **Likely not** | Confirm encryption was FIPS 140-2 compliant; document |
+| Email with PHI sent to wrong patient | **Risk assess** | Did recipient view it? Can they be contacted to confirm deletion? |
+| PHI mailed to wrong address | **Risk assess** | Was it returned unopened? Could recipient have retained it? |
+| Employee snoops on celebrity patient records | **Yes** | Workforce members are authorized users but this is impermissible access |
+| Ransomware encrypts ePHI | **Likely yes** | Access/acquisition occurred; must conduct risk assessment; difficult to rebut |
+| Vendor (BA) has breach | **Yes** | BA must notify CE; CE must notify individuals within 60 days |
+| PHI posted on social media by employee | **Yes** | Impermissible disclosure; high severity |
+| Paper PHI left in unsecured area briefly | **Risk assess** | Was it accessed? By whom? Mitigated? |
+| Verbal disclosure of PHI to wrong party | **Privacy Rule** (not Security Rule) | Breach Notification applies to PHI broadly, not just ePHI |