Healthcare providers, health plans, health care clearinghouses, and their business associates have an obligation under the Health Insurance Portability and Accountability Act (HIPAA) to protect patient health information protected under the law. Regulations issued by the Department of Health and Human Services (HHS) under HIPAA require HIPAA covered entities and their business associates to implement policies and procedures to address the disposal of electronic protected health information (PHI) and the hardware or electronic media on which it is stored. As a result, secure data disposal is a key process for HIPAA covered entities and their business associates.
The covered entity or business associate must have policies and procedures to ensure PHI cannot be inadvertently disclosed during or after disposal or reuse of its storage media. Next to the theft of lost and stolen laptops and media, the second most common subject of enforcement by the HHS Office for Civil Rights (OCR) has been improper disposal of PHI. For example, South Shore Hospital near Boston faced an attorney general enforcement action after the hospital retained a data management company to dispose of computer tapes containing PHI, but the tapes were lost in transit. The hospital failed to delete the PHI from the tapes before shipping them. In another case, the OCR forced Affinity Health Plan to pay over $1.2M after it returned photocopiers to a leasing company without first removing electronic PHI from them.
Some of the OCR enforcement activities concerned cases involving the improper disposal of paper PHI. The security of paper PHI falls under the Privacy Rule, rather than the Security Rule. In one of the OCR cases, workers left boxes of paper medical records on a retiring physician’s driveway while he was away. In one attorney general enforcement action, the Massachusetts attorney general sued former owners of a medical billing practice and four pathology groups after they improperly disposed of paper records with sensitive PHI in a public dump, which were found by a Boston Globe photographer. The former owners paid $140,000 to settle the claim.