The Department of Health and Human Service (HHS) Office of Civil Rights (OCR) has a frequently asked questions document (PDF) on the disposal of protected health information (PHI). Below are some of the highlights of the guidance:
What do the HIPAA Privacy and Security Rules require of covered entities when they dispose of protected health information?
…covered entities must implement reasonable safeguards to limit incidental, and avoid prohibited, uses and disclosures of PHI, including in connection with the disposal of such information. In addition, the HIPAA Security Rule requires that covered entities implement policies and procedures to address the final disposition of electronic PHI and/or the hardware or electronic media on which it is stored, as well as to implement procedures for removal of electronic PHI from electronic media before the media are made available for re-use.
Thus, covered entities 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. However, the Privacy and Security Rules do not require a particular disposal method. Covered entities must review their own circumstances to determine what steps are reasonable to safeguard PHI through disposal, and develop and implement policies and procedures to carry out those steps. In determining what is reasonable, covered entities should assess potential risks to patient privacy, as well as consider such issues as the form, type, and amount of PHI to be disposed. For instance, the disposal of certain types of PHI such as name, social security number, driver’s license number, debit or credit card number, diagnosis, treatment information, or other sensitive information may warrant more care due to the risk that inappropriate access to this information may result in identity theft, employment or other discrimination, or harm to an individual’s reputation.
- For PHI in paper records, shredding, burning, pulping, or pulverizing the records so that PHI is rendered essentially unreadable, indecipherable, and otherwise cannot be reconstructed.
- For PHI on electronic media, clearing (using software or hardware products to overwrite media with non-sensitive data), purging (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).
May a covered entity dispose of protected health information in dumpsters accessible by the public?
No, unless the protected health information (PHI) has been rendered essentially unreadable, indecipherable, and otherwise cannot be reconstructed prior to it being placed in a dumpster. In general, a covered entity may not dispose of PHI in paper records, labeled prescription bottles, hospital identification bracelets, PHI on electronic media, or other forms of PHI in dumpsters, recycling bins, garbage cans, or other trash receptacles generally accessible by the public or other unauthorized persons.
May a covered entity hire a business associate to dispose of protected health information?
Yes, a covered entity may, but is not required to, hire a business associate to appropriately dispose of protected health information (PHI) on its behalf. In doing so, the covered entity must enter into a contract or other agreement with the business associate that requires the business associate, among other things, to appropriately safeguard the PHI through disposal.
May a covered entity reuse or dispose of computers or other electronic media that store electronic protected health information?
Yes, but only if certain steps have been taken to remove the electronic protected health information (ePHI) stored on the computers or other media before its disposal or reuse, or if the media itself is destroyed before its disposal. The HIPAA Security Rule requires that covered entities implement policies and procedures to address the final disposition of ePHI and/or the hardware or electronic media on which it is stored, as well as to implement procedures for removal of ePHI from electronic media before the media are made available for reuse.
Depending on the circumstances, appropriate methods for removing ePHI from electronic media prior to reuse or disposal may be by clearing (using software or hardware products to overwrite media with non-sensitive data) or purging (degaussing or exposing the media to a strong magnetic field in order to disrupt the recorded magnetic domains) the information from the electronic media. If circumstances warrant the destruction of the electronic media prior to disposal, destruction methods may include disintegrating, pulverizing, melting, incinerating, or shredding the media.
Does the HIPAA Privacy Rule require covered entities to keep patients’ medical records for any period of time?
No, the HIPAA Privacy Rule does not include medical record retention requirements. Rather, State laws generally govern how long medical records are to be retained. However, the HIPAA Privacy Rule does require that covered entities apply appropriate administrative, technical, and physical safeguards to protect the privacy of medical records and other protected health information (PHI) for whatever period such information is maintained by a covered entity, including through disposal.
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