Recent HIPAA Settlement Offers Lessons on Data Disposal and the Meaning of PHI
A $300,640 settlement announced yesterday by the Office for Civil Rights (OCR) provides important reminders about HIPAA Privacy Rule and data privacy practices generally: robust data disposal practices are critical and “protected health information” (PHI) is not limited to diagnosis or particularly sensitive information.
The OCR’s settlement involved a New England dermatology practice that reported a HIPAA breach last year which resulted when empty specimen containers with PHI on the labels were placed in a garbage bin of the practice’s parking lot. The containers’ labels included patient names and dates of birth, dates of sample collection, and name of the provider who took the specimen. Accordingly to the Resolution Agreement, the practice
"regularly discarded specimen containers with an attached label that contained PHI as regular waste, bagged and placed in an exterior dumpster…without alteration to the PHI containing label."
The disposal practice described above may be more common that we think, and it raises risks well beyond HIPAA and PHI. The OCR announcement reminds covered entities and business associate of HIPAA FAQs addressing data disposal. Here are some key points from those FAQs:
Reasonable safeguards must be implemented to limit incidental, and avoid prohibited, uses and disclosures of PHI. This includes procedures for electronic PHI and/or the hardware or electronic media on which it is stored, as well as to removal of electronic PHI from electronic media before the media are made available for re-use.
Workforce members must be trained on and follow the disposal policies and procedures.
HIPAA does not specify a particular disposal method, but covered entities and business associates “are not permitted to simply abandon PHI or dispose of it in dumpsters or other containers that are accessible by the public or other unauthorized persons.” This includes paper records, labeled prescription bottles, hospital identification bracelets, PHI on electronic media, etc. Examples of disposal methods include:
Paper records with PHI: shred, burn, pulp, or pulverize the records so that PHI is rendered essentially unreadable, indecipherable, and otherwise cannot be reconstructed.
Maintain labeled prescription bottles and other PHI in opaque bags in a secure area and using a disposal vendor as a business associate to pick up and shred or otherwise destroy the PHI.
Electronic media with PHI: clear (using software or hardware products to overwrite media with non-sensitive data), purge (degaussing or exposing the media to a strong magnetic field in order to disrupt the recorded magnetic domains), or destroying the media (disintegration, pulverization, melting, incinerating, or shredding).
Of course, these best practices can be applied beyond HIPAA PHI to personal information as well as confidential company data.
Protected Health Information
A common and not necessarily unreasonable first reaction when considering the response to a potential data breach is that the compromised data is not PHI because it does not include diagnosis information. In cases like the one above, one might surmise that patient names, dates of birth, dates of sample collection, and name of provider who took the specimen are not PHI, or at least not sufficiently sensitive to warrant notification.
The definition of PHI starts with the definition of “individually identifiable health information,” which generally means identifiable health information transmitted or maintained in electronic media or any other form or medium that:
Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.
See 45 CFR 160.103. See also 42 U.S.C. 1320d(6). This includes demographic information which likely includes information such as name, address and other contact information, age, gender, and insurance status.
When dealing with information of a personal nature, it is important to understand the different buckets into which that information may fall. It might not seem intuitive that certain categories of information, if compromised, could trigger a notification obligation.
For covered entities and business associates under HIPAA, and just about any other organization that handles confidential personal and business information, completely and securely disposing that information when it is no longer needed is an important step in limiting information risk. Additionally, it can be risky to make assumptions about the regulatory obligations concerning certain data without doing the homework or seeking experienced counsel.