HIPAA Retention Requirements - 2023 Update (2023)

Posted By HIPAA Journal on Jan 1, 2023

The distinction between HIPAA medical records retention and HIPAA record retention can be confusing when discussing HIPAA retention requirements. This article aims to clarify what records should be retained under HIPAA compliance rules, and what other data retention requirements Covered Entities and Business Associates may have to consider.

Throughout the Administrative Simplification Regulations of HIPAA, there are several references to HIPAA data retention. These generally fall into two categories – HIPAA medical records retention and HIPAA records retention requirements. The distinction between the two categories is that there are no HIPAA medical records retention requirements, but requirements exist for other documentation.

One of the reasons the lack of HIPAA medical records retention requirements can be confusing is that, under the Privacy Rule, individuals can request access to and amendment of Protected Health Information “for as long as Protected Health Information is maintained in a designated record set”. However, Covered Entities and Business Associates are required to provide an accounting of disclosures of Protected Health Information for the six years prior to a request.

Why There is No HIPAA Medical Records Retention Period

The reason the Privacy Rule does not stipulate how long medical records should be retained is because there is no mandated HIPAA medical records retention period. This is because each state has its own laws governing the retention of medical records, and – unlike in other areas of the Healthcare Insurance Portability and Accountability Act – HIPAA does not pre-empt state data retention laws.

Consequently, each Covered Entity and Business Associate is bound by state law with regards to how long medical records have to be retained rather than any specific HIPAA medical records retention period. States’ retention periods can vary considerably depending on the nature of the records and to whom they belong. For example:

• In Arkansas, adults´ hospital medical records must be retained for ten years after discharge but master patient index data must be retained permanently.
• In Florida, physicians must maintain medical records for five years after the last patient contact, whereas hospitals must maintain them for seven years.
• In Georgia, doctors have to retain any evaluation, diagnosis, prognosis, laboratory report, or biopsy slide in a patient’s record for ten years from the date it was created.
• In Nevada, healthcare providers are required to maintain medical records for a minimum of five years, or – in the case of a minor – until the patient has reached twenty-three years of age.
• In North Carolina, hospitals must maintain patients’ records for eleven years from the date of discharge, and records relating to minors must be retained until the patient has reached thirty years of age.

What HIPAA Retention Requirements Exist for Other Documentation?

Although there are no HIPAA retention requirements for medical records, there are requirements for how long other HIPAA-related documents should be retained. These requirements are covered in 45 CFR 164.316 and 45 CFR 164.530 – both of which state Covered Entities and Business Associates must document policies and procedures implemented to comply [with HIPAA] and records of any action, activity, or assessment with regards to the policies and procedures, or sufficient to meet the burden of proof under the Breach Notification Rule.

Both standards also stipulate documents must be retained for a minimum of six years from when the document was created, or – in the event of a policy – from when it was last in effect. Therefore, if a policy is implemented for three years before being revised, a record of the original policy must be retained for a minimum of nine years after its creation. These HIPAA data retention requirements preempt state laws if they require shorter periods of document retention.

The list of documents subject to the HIPAA retention requirements depends on the nature of business conducted by the Covered Entity or Business Associate. The following list is an example of the most common types of documents subject to the HIPAA document retention requirements; but, for example, health care clearinghouses do not issue Notices of Privacy Practices, so would not be required to retain copies of them:

• Notices of Privacy Practices.
• Authorizations for Disclosures of PHI.
• Risk Assessments and Risk Analyses.
• Disaster Recovery and Contingency Plans.
• Business Associate Agreements.
• Information Security and Privacy Policies.
• Employee Sanction Policies.
• Incident and Breach Notification Documentation.
• Complaint and Resolution Documentation.
• Physical Security Maintenance Records.
• Logs Recording Access to and Updating of PHI.
• IT Security System Reviews (including new procedures or technologies implemented).

What Else to Consider in Addition to HIPAA Record Retention

It was mentioned above the HIPAA retention requirements can be confusing; and when some other regulatory requirements are taken into account, this may certainly be the case. This is because – for example – in addition to HIPAA records retention, health insurance companies may be subject to the complexities of FINRA, while employers that are Covered Entities may have to comply with the record retention requirements of the Employee Retirement Income Security Act and Fair Labor Standards Act. In some cases, this can mean retaining records indefinitely.

The Centers for Medicare & Medicaid Services (CMS) requires records of healthcare providers submitting cost reports to be retained for a period of at least five years after the closure of the cost report, and that Medicare managed care program providers retain their records for ten years. Providers and suppliers need to maintain medical records for each Medicare beneficiary that is their patient. Although much of the documentation supporting CMS cost reports will be the same as those required for HIPAA record retention purposes, the two sets of records must be kept separate for retrieval purposes.

For all Covered Entities and Business Associates, it is recommended any documentation that may be required in a personal injury or breach of contract dispute is retained for as long as necessary. “As long as necessary” will depend on the relevant Statute of Limitations in force in the state in which the entity operates. In many cases, Statutes of Limitation are longer than any HIPAA record retention periods.

HIPAA Record Retention and Destruction/Disposal

When the required retention periods for medical records and HIPAA documentation have been reached, HIPAA requires all forms of PHI to be destructed or disposed of securely to prevent impermissible disclosures of PHI. The Privacy and Security Rules do not require a particular disposal method and the HHS recommends Covered Entities and Business Associates review their circumstances to determine what steps are reasonable to safeguard PHI through destruction and disposal.

HHS also suggests some secure methods for destructing or disposing of PHI once the HIPAA data retention requirements have expired. With regards to paper records, the agency suggests shredding, burning, pulping, or pulverizing the records so that PHI is rendered essentially unreadable, indecipherable, and otherwise cannot be reconstructed, while for other physical PHI such as labelled prescription bottles, HHS suggests using a disposal vendor as a business associate to pick up and shred or otherwise destroy the PHI.

With regards to electronic PHI, HIPAA requires that Business Associates return or destroy all PHI at the termination of a Business Associate Agreement. In order to comply with this standard, HHS suggests 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) – methods that could also be used by a Covered Entity when PHI or documentation is no longer subject to the HIPAA retention requirements.

HIPAA Retention Requirements – FAQS

How long does a covered entity have to retain a patient authorization for the disclosure of PHI?

The document itself is subject to HIPAA retention laws, which means it must be retained for six years. However, if the document is part of the patient´s medical record, it is subject to the state´s medical record retention requirements – which could be longer. Furthermore, if the covered entity operates in a state in which the Statute of Limitations for private rights of action exceeds six years, it will be necessary to retain the document until the Statute of Limitations has expired.

Why are IT security system reviews considered HIPAA-related documents?

Under the technical safeguards of the HIPAA Security Rule, covered entities are required to enforce IT security measures such as access controls, password policies, automatic log off, and audit controls regardless of whether the systems are being used to access ePHI. These measures would ordinarily be included in an IT security system review, and therefore the reviews have to be retained for a minimum of six years.

How should covered entities and business associates dispose of HIPAA-related documentation?

If the documentation is maintained on paper, HHS recommends the same actions as are appropriate for PHI – “shredding, burning, pulping, or pulverizing the records so that PHI is rendered essentially unreadable, indecipherable, and otherwise cannot be reconstructed”. For ePHI and documentation maintained on electronic media, HHS recommends clearing or purging the data, or destroying the media by pulverization, melting, or incinerating.

Can covered entities and business associates be fined for the improper disposal of HIPAA-related documentation?

Although there have been no cases of a covered entity being fined for the improper disposal of an IT security system review, there has been multiple penalties issued by HHS for the improper disposal of PHI. Therefore, it is in a covered entity´s best interests to train staff on the correct manner to dispose of all documentation relating to healthcare activities.

What are the Administrative Simplification Regulations of HIPAA?

The Administrative Simplification Regulations contain the Rules and standards developed by the Department of Health & Human Services (HHS) to comply with Title II of HIPAA and Subtitle D of the HITECH Act. The Administrative Simplification Regulations not only include the Privacy, Security, and Breach Notification Rules, but also the General Administrative Requirements, the standards for covered transactions, and the Enforcement Rule – which describes how HHS conducts compliance investigations.

When does HIPAA pre-empt state data retention laws?

If a state has a law requiring the retention of policy documents for (say) five years, but some of those documents are subject to the HIPAA data retention requirements (i.e., complaint and resolution documentation), the documents subject to the HIPAA data retention requirements must be retained for a minimum of six years rather than five.

If HIPAA states PHI has to be retained for six years, but a state law requires medical records to be retained for ten years, which law takes precedence?

HIPAA does not state PHI has to be retained for six years. The HIPAA data retention requirements only apply to documentation such as policies, procedures, assessments, and reviews. Therefore, Covered Entities should comply with the relevant state law for medical record retention. However, when the medical record retention period has expired, and medical records are destroyed, HIPAA stipulates how they should be destroyed to prevent impermissible disclosures of PHI.

What is the burden of proof under the Breach Notification Rule?

Following any impermissible use or disclosure of unsecured PHI, Covered Entities and Business Associates have the burden of proof to demonstrate that the impermissible use or disclosure of unsecured PHI did not constitute a data breach. If such an event does constitute a data breach, Covered Entities and Business Associates also have the burden of proof to demonstrate that all required notifications have been made (i.e., to the individual, to HHS´ Office for Civil Rights, and – when necessary – to the media).

How long is it necessary to retain authorizations for disclosures of PHI?

Authorizations for disclosures of PHI not permitted by the Privacy Rule should include an expiration date or an expiration event that relates to the individual or the purpose of the disclosure (i.e., “end of research study”). The six-year HIPAA retention period finishes six years after the expiration date or event rather than six years after the authorization is signed.