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.

Data Disposal

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.

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.