Do disclaimers make emails HIPAA compliant?

Email disclaimers are those blocks of text that appear at the bottom of emails. These messages contain legal language about confidentiality, intended recipients, and instructions for what to do if you've received the message in error. In healthcare settings, these disclaimers often reference HIPAA regulations and warn about the sensitive nature of the information contained in the email.

However, disclaimers do not make emails HIPAA compliant. The Health Insurance Portability and Accountability Act (HIPAA) doesn't require email disclaimers. Nowhere in the Privacy Rule or Security Rule will you find a mandate for that block of text at the bottom of your messages. What HIPAA does require is that covered entities and their business associates implement appropriate administrative, physical, and technical safeguards to protect electronic protected health information, or ePHI.

The difference is that a disclaimer is a warning label, but HIPAA compliance is about building a secure system.

Learn more: HIPAA Compliant Email: The Definitive Guide (2025 Update)

What HIPAA actually requires for email

The HIPAA Security Rule requires covered entities to conduct a risk analysis to identify potential risks and vulnerabilities to ePHI. Specifically, 45 C.F.R. § 164.308(a)(1)(ii)(A) requires that organizations "conduct an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of electronic protected health information held by the covered entity or business associate." Based on this analysis, organizations must implement security measures that are reasonable and appropriate for their size, complexity, and the nature of the ePHI they handle.

For email communications containing ePHI, this means implementing encryption. The Security Rule doesn't explicitly mandate encryption in all cases, but it identifies encryption as an "addressable" implementation specification. Under 45 C.F.R. § 164.312(a)(2)(iv), covered entities must "implement a mechanism to encrypt and decrypt electronic protected health information," while 45 C.F.R. § 164.312(e)(2)(ii) requires entities to "implement a mechanism to encrypt electronic protected health information whenever deemed appropriate."

The term "addressable" has a specific meaning in HIPAA regulations. According to 45 C.F.R. § 164.306(d)(3), when a standard includes addressable implementation specifications, organizations must assess whether each specification is reasonable and appropriate in their environment. If implementing the specification is reasonable and appropriate, they must implement it. If not, they must document why it would not be reasonable and appropriate, and implement an equivalent alternative measure if one exists.

Notably, HHS has proposed updates to the HIPAA Security Rule that would eliminate the “addressable” distinction and make safeguards such as encryption mandatory, but those changes have not yet been finalized or taken effect.

The components of compliant email communication

HIPAA compliance for email requires multiple layers of protection:

• Encryption: This is the technical safeguard that ensures that only the intended recipient can decrypt and read the message. As noted in 45 C.F.R. § 164.312(a)(2)(iv) and § 164.312(e)(2)(ii), encryption mechanisms must be implemented for electronic protected health information.
• Access controls: Not everyone in your organization should have the ability to send ePHI via email, and there should be authentication mechanisms to verify the identity of both senders and recipients. Under 45 C.F.R. § 164.312(a)(1), organizations must "implement technical policies and procedures for electronic information systems that maintain electronic protected health information to allow access only to those persons or software programs that have been granted access rights." Furthermore, 45 C.F.R. § 164.312(a)(2)(i) requires organizations to "assign a unique name and/or number for identifying and tracking user identity."
• Audit controls: There must be systems that create a record of who accessed what information and when. According to 45 C.F.R. § 164.312(b), covered entities must "implement hardware, software, and/or procedural mechanisms that record and examine activity in information systems that contain or use electronic protected health information." If there's ever a breach or a question about whether information was improperly disclosed, you need to be able to trace what happened.
• Policies and procedures: Your organization needs guidelines that govern how email can be used for ePHI. Under 45 C.F.R. § 164.316(a), organizations must "implement reasonable and appropriate policies and procedures to comply with the standards, implementation specifications, or other requirements of this subpart." This includes training staff on what can and cannot be sent via email, how to verify recipient addresses, and what to do if information is sent to the wrong person.
• Business associate agreements: If you're using a third-party email service that has access to ePHI, you need a legally binding contract that ensures your email provider also maintains appropriate safeguards. According to 45 C.F.R. § 164.308(b)(1), "a covered entity may permit a business associate to create, receive, maintain, or transmit electronic protected health information on the covered entity's behalf only if the covered entity obtains satisfactory assurances, in accordance with § 164.314(a), that the business associate will appropriately safeguard the information." The regulations at 45 C.F.R. § 164.314(a)(2)(i) further specify that business associate contracts must ensure the business associate will comply with applicable HIPAA requirements, ensure subcontractors do the same, and report any security incidents or breaches.

When disclaimers might help

Disclaimers can be used as a reminder to both senders and recipients about the sensitive nature of the information being transmitted. They might also provide some minor legal protection by establishing that the sender intended the communication to be confidential.

If an email is accidentally sent to the wrong recipient, a disclaimer that asks the unintended recipient to delete the message and notify the sender might help mitigate the breach, though it doesn't prevent it or eliminate the need to report it under HIPAA's breach notification requirements.

What happens if you don't comply

In January 2020, PIH reported to the Office for Civil Rights (OCR) that a phishing attack in June 2019 had compromised forty-five employee email accounts, exposing the unsecured electronic protected health information of 189,763 individuals. The compromised information included names, addresses, dates of birth, driver's license numbers, Social Security numbers, diagnoses, lab results, medications, treatment and claims information, and financial information. The consequence was a $600,000 settlement with OCR and a two-year corrective action plan with strict oversight.

An email disclaimer wouldn’t have worked because the phishing attack succeeded because PIH lacked security measures. OCR's investigation found that PIH had failed to conduct an accurate and thorough risk analysis, failed to implement proper safeguards for ePHI, and failed to notify affected individuals within the required 60-day timeframe.

Remember that the disclaimer doesn't encrypt the data. It doesn't authenticate users. It doesn't create audit trails. It doesn't train employees to recognize phishing attempts. All the things that might have actually prevented this breach have nothing to do with disclaimers.

As OCR Acting Director Anthony Archeval noted when announcing the settlement, "Hacking is one of the most common types of large breaches reported to OCR every year. HIPAA-regulated entities need to be proactive and remedy the deficiencies in their HIPAA compliance programs before those deficiencies result in the impermissible disclosure of patients' protected health information."

HIPAA violations can result in fines, reputational damage, loss of patient trust, potential legal liability, and possibility of multi-year oversight by federal regulators.

FAQs

Are email disclaimers required under HIPAA?

No, HIPAA does not require email disclaimers anywhere in the Privacy Rule, Security Rule, or Breach Notification Rule.

Can an email disclaimer reduce HIPAA penalties after a breach?

No, disclaimers do not mitigate penalties or reduce liability in OCR enforcement actions.

Does including a disclaimer prevent an email from being considered an impermissible disclosure?

No, if ePHI is disclosed to an unauthorized recipient, the disclosure has already occurred regardless of any disclaimer language.

Do patients have to consent to receiving emails with disclaimers?

HIPAA focuses on safeguards and patient preferences for communication, not on whether a disclaimer is present.

Are disclaimers considered an administrative, physical, or technical safeguard under HIPAA?

No, disclaimers do not qualify as safeguards under any HIPAA Security Rule category.