Is a HIPAA Email Disclaimer Worthwhile?
A HIPAA email disclaimer is a note included at the end of an email that alerts the recipient the email contains Protected Health Information and that, if they have received the email in error, they should report the error and delete the email. Although HIPAA email disclaimers are not required by the HIPAA Privacy and Security Rules, they can be worthwhile in a number of scenarios.
Misdeliveries of emails containing Protected Health Information (PHI) are a fairly common reason for unauthorized disclosures of PHI according to an analysis of HHS’ Data Breach Report Archive and Verizon’s 2024 Data Breach Investigations Report. From the data available, approximately 8% of all data breaches notified to HHS’ Office for Civil Rights are due to the misdelivery of email – which in 2022 would account for more than 5,000 data breaches.
While the number of data breaches attributable to misdeliveries may appear high, it is important to note that these are the data breaches that are known about. There may be many more cases in which an email containing PHI was sent to the wrong recipient, and the recipient just deleted it as it was not intended for them. This also means that the intended recipient never received the email – potentially resulting in an avoidable adverse patient event.
How a HIPAA Email Disclaimer Can Help
A HIPAA email disclaimer can help prevent avoidable adverse events by informing the wrong recipient to report the misdelivery and delete the email so a copy can be re-sent to the intended recipient. To encourage the cooperation of the wrong recipient, the HIPAA email disclaimer should explain the content of the email may be important to the intended recipient and that, by reporting the misdelivery, an adverse patient event may be avoided.
When asking the wrong recipient to report the misdelivery, it is important the request asks the recipient to make the report by phone. If they return the email to the originating email account, it is likely to travel unencrypted via their email provider’s servers. It is also important not to threaten legal action for failing to report the misdelivery, because this may spook the recipient into inadvertently sharing the content of the email when seeking legal advice.
Disclaimers can Mitigate the Scale of a Data Breach
Rather than a misdelivery potentially affecting a single recipient, some misdeliveries of emails can affect thousands of recipients. In such cases, it is important the error is identified as quickly as possible so that the email can be recalled (when available) and the recall report reviewed to see how many misdelivered emails have been opened and read. A HIPAA email disclaimer can help accelerate the identification of an error in order to mitigate the scale of a data breach.
It is important to be aware that a HIPAA email disclaimer does not absolve the sender of a misdelvered email from notifying the data breach to affected individuals and HHS’ Office for Civil Rights. As such, a HIPAA email disclaimer does not “disclaim” the sender of the email from the responsibility of disclosing PHI impermissibly. However, it could be argued that the inclusion of a disclaimer demonstrates a good faith effort to mitigate the scale of a data breach.
How a Good Faith Effort can Enhance Patient Trust
Other than informing the recipients of misdelivered emails on how to report the email, a HIPAA email disclaimer can give the impression to patients that an organization is taking its HIPAA compliance obligations seriously. This can help enhance patient trust in healthcare providers, which results in patients disclosing more information, providers making better informed diagnoses, and patients complying with the treatment plans prescribed for them.
However, this impression has to be supported by other demonstrations of HIPAA compliance when patients attend a medical facility or communicate with healthcare providers. For this reason, it is important that all members of the workforce receive effective HIPAA awareness training, that compliance with the provider’s policies and procedures is monitored, and that effective administrative, physical, and technical safeguards are implemented to protect PHI from all types of unauthorized disclosures.
