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The HIPAA Breach Notification Rule

Not every incident is a breach — but once it is, a clock starts that you cannot pause.

Sudhakar Varma Delivery Head, Avantcert
August 31, 2026 8 min read

What counts as a breach

A breach is an impermissible acquisition, access, use or disclosure of unsecured PHI that compromises its security or privacy. The important word is unsecured: PHI encrypted to HHS-specified standards is not unsecured, so an encrypted laptop going missing is generally not a reportable breach.

An impermissible use or disclosure is presumed to be a breach unless you demonstrate a low probability of compromise through a documented risk assessment. The burden is on you, and the demonstration has to be written down.

The four-factor assessment

FactorWhat you assess
Nature and extent of PHIIdentifiers involved and likelihood of re-identification
Who received itWhether the recipient is itself obligated to protect PHI
Was it actually acquired or viewedAccess opportunity versus evidence of access
Extent of mitigationWhether the risk was reduced, e.g. confirmed deletion

All four, documented. A conclusion of low probability with no written analysis behind it is the version that fails in an investigation.

Who to notify, and when

WhoWhenApplies
Affected individualsWithout unreasonable delay, no later than 60 days from discoveryAll breaches
HHS — 500 or more affectedWithin 60 days of discoveryLarge breaches
HHS — fewer than 500Annually, within 60 days of year endSmall breaches
Prominent mediaWithin 60 days500+ in one state or jurisdiction
Business associate to covered entityWithout unreasonable delay, no later than 60 days — often far shorter by contractBAs

Discovery starts the clock, and discovery means the first day the breach is known or reasonably should have been known by anyone in the organization other than the person who caused it. That is earlier than most incident timelines assume.

What business associates owe

You notify the covered entity, not the individuals. HIPAA's outer limit is 60 days, but most BAAs impose far shorter windows — 24 or 48 hours is common, because your customer needs time to meet their own 60-day deadline.

Check what you signed. A 24-hour contractual notification obligation requires detection capability, an on-call path and a decision process that exists before the incident, not after.

What to have ready in advance

A written procedure someone could follow at 2am — who decides, who drafts, who notifies, in what order.

The four-factor template, so the assessment is consistent rather than improvised under pressure.

An incident log covering all impermissible uses, including those assessed as not breaches. The ones you decided were not breaches are exactly what an investigator asks to see.

Contact data you can actually reach affected individuals with.

Encryption where feasible. The single most effective way to keep an incident from becoming a reportable breach.

FAQs

What is a HIPAA breach?

An impermissible acquisition, access, use or disclosure of unsecured PHI that compromises its security or privacy. PHI encrypted to HHS-specified standards is not unsecured, so incidents involving properly encrypted data are generally not reportable breaches.

How long do I have to report a HIPAA breach?

Individuals must be notified without unreasonable delay and no later than 60 days from discovery. Breaches affecting 500 or more must be reported to HHS within 60 days; smaller ones annually. Business associates notify the covered entity within 60 days under HIPAA, though most BAAs impose far shorter windows.

Is every impermissible disclosure a HIPAA breach?

It is presumed to be one unless you demonstrate a low probability that PHI was compromised, through a documented four-factor risk assessment covering the nature of the PHI, who received it, whether it was actually acquired or viewed, and the extent of mitigation. The burden of demonstration is on you.

What are the four factors in a HIPAA breach risk assessment?

The nature and extent of the PHI including identifiers and re-identification risk; who the unauthorised recipient was and whether they are themselves obligated to protect PHI; whether the PHI was actually acquired or viewed rather than merely exposed; and the extent to which the risk has been mitigated.

When does the HIPAA breach clock start?

At discovery, meaning the first day the breach is known or reasonably should have been known to anyone in the organization other than the person who caused it. That is typically earlier than teams assume, because it includes the point at which the incident should have been detected.

Where to go next

See the HIPAA risk assessment, what your BAA commits you to, or HIPAA consulting.

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