FTC Issues Final Breach Notification Rule for Electronic Health Information

The Federal Trade Commission has issued a final rule requiring certain Web-based businesses to notify consumers when the security of their electronic health information is breached.

Congress directed the FTC to issue the rule as part of the American Recovery and Reinvestment Act of 2009. The rule applies to both vendors of personal health records – which provide online repositories that people can use to keep track of their health information – and entities that offer third-party applications for personal health records. These applications could include, for example, devices such as blood pressure cuffs or pedometers whose readings consumers can upload into their personal health records. Consumers may benefit by using these innovations, but only if they are confident that their health information is secure and confidential.

Many entities offering these types of services are not subject to the privacy and security requirements of the Health Insurance Portability and Accountability Act (HIPAA), which applies to health care service providers such as doctors’ offices, hospitals, and insurance companies. The Recovery Act requires the Department of Health and Human Services to conduct a study and report by February 2010, in consultation with the FTC, on potential privacy, security, and breach-notification requirements for vendors of personal health records and related entities that are not subject to HIPAA. In the meantime, the Act requires the Commission to issue a rule requiring these entities to notify consumers if the security of their health information is breached. The Commission announced a proposed rule in April 2009, collected public comments until June 1, and is issuing the Final Rule today.

The Final Rule requires vendors of personal health records and related entities to notify consumers following a breach involving unsecured information. In addition, if a service provider to one of these entities has a breach, it must notify the entity, which in turn must notify consumers. The Final Rule also specifies the timing, method, and content of notification, and in the case of certain breaches involving 500 or more people, requires notice to the media. Entities covered by the rule must notify the FTC, and they may use a standard form, which can be found along with additional information about the rule at www.ftc.gov/healthbreach.

The Commission vote approving the Final Rule was 4-0. The notice will be published in the Federal Register shortly, and is available now on the FTC’s Web site and as a link to this press release.

The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them. To file a complaint in English or Spanish, visit the FTC’s online Complaint Assistant or call 1-877-FTC-HELP (1-877-382-4357). The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 1,500 civil and criminal law enforcement agencies in the U.S. and abroad. The FTC’s Web site provides free information on a variety of consumer topics.

(FTC File No. R911002)
(health info.wpd)