If you experience anxiety every time you consider texting and/or emailing in your health care setting, you are not alone. On one hand, the world that we live in necessitates that information is communicated in a quick and easy manner. The ability to text or email staff and patients has become a high priority for many health care entities. On the other hand, patient privacy and confidentiality is essential to meeting compliance standards. Though emailing and texting are convenient, it certainly does not come without the possibility of pitfalls. It is a complex issue that requires meeting several factors in order to be implemented properly.
But Everybody Is Doing It, Right?
The perception is that many health care entities are already taking advantage of emailing and texting capabilities. That may be accurate. But the bigger question is whether they are utilizing those tools in accordance with HIPAA Privacy and Security requirements. Health care entities should consider the following:
A Risk Analysis is key. An adequate Risk Analysis is required to be performed at the outset of the practice, prior to developing a HIPAA policy. This Risk Analysis identifies the type of information that you maintain or access and the areas within your entity where protected health information (PHI) is vulnerable. The Risk Analysis should be reviewed, and amended if necessary, whenever there is a change in your information technology environment. This includes adopting the use of email and text messaging. The entity will need to consider potential vulnerabilities and threats, then document their plan to ensure that health information stays secure.
Show me the policy. The HIPAA Privacy and Security policy must document your entity’s use of these services and define how employees are to utilize them. This includes specifying whether only business owned devices can be used or whether the entity allows employees to utilize their own personal device (BYOD). The policy should also be specific about any differences in procedure for emailing and texting internally, versus outside communication with patients and other health care providers. The policy requirement should be followed by adequate training.
Encryption, encryption, encryption. Many entities that utilize PHI in email communications secure the information via encryption. Within health care entities, the information is often secured by firewalls. Firewalls make it much easier to implement security measures, oversee procedures and secure information. Some health care entities choose to transmit PHI via electronic health records and customized patient portals. However, using emails to properly transmit PHI outside the entity is a much more complicated process. To properly transmit PHI via email, encryption must be utilized. Encryption software will resolve security issues because the patient receives an email containing a link which requires a unique username and password to access the PHI. Some patients find the process of logging in and remembering required passwords to be cumbersome, but others appreciate knowing that their information is secure.
Less is more. When communicating with individuals outside of your entity about PHI, utilize the Minimum Necessary Rule. The Minimum Necessary Rule requires health care entities to limit the PHI produced to the amount of information necessary for the recipient to carry out their function. For example, if another provider requests a patient’s diabetes lab work, only provide the requested lab work and not the patient’s entire medical record. Also, it is recommended that you not share sensitive information including, but not limited to, a patient’s mental health, communicable disease status, child or elder abuse, and substance abuse issues. The entity’s policies/procedures should define and describe how sensitive information should be transmitted.
The patient gets their way. HIPAA requires entities to communicate with patients in the manner determined by the patient, so long as it is reasonable. An entity’s Notice of Privacy Practices will generally articulate methods of intended communication by the entity. However, a patient may choose not to receive communications through a traditional method. An example would be a patient request not to use U.S. mail, but to use email instead. That entity may find that they do not have encrypted email capabilities that would appropriately safeguard the information. In this scenario, the health care entity must still comply with the patient’s request; however, they should have the patient sign a form that memorializes the patient’s request to use email communication and documents the risks associated with this request.
The guidance above does not apply to patient initiated communications. Patients are not considered to be HIPAA covered entities and therefore, their actions are not HIPAA violations. Thus, patients are free to initiate emails or text messages with health care providers at their pleasure. Health care entities should have a form on hand for the patient to sign prior to responding to an email or text message from the patient. This form documents that the patient is aware of the inherent risk of email or text message communications, but wishes to receive the communication in that form anyway. This will help to satisfy the patient’s preference while helping to shield the health care entity from liability if communications are intercepted beyond the entity’s control.
Texting Has Added Risks
Text messages are generally available to anyone who utilizes that person’s phone because there is generally not separate password security for access to the text messaging feature. Additionally, because the text messages do not pass through the entity’s servers, it is difficult, if not impossible, for IT staff and Security Officers to audit the texts. And if these communications are intended to be a part of the patient’s record to demonstrate communication, the patient loses the right to amend the communication if it is not readily available in the paper or electronic record. There are vendors who offer “secure texting” solutions. If a health care entity is considering a secure texting vendor, have your designated Security Officer review their system carefully and converse extensively with the vendor about whether their product is indeed secure. A BAA with the vendor is also required. Finally, the entity should revisit its written policy and retrain when necessary.
To ensure that your practice is in compliance, and for assistance with determining whether your entity should proceed with implementing text or email communications, please consult a health care compliance professional.
Samarria Dunson, J.D., CHC, CHPC is attorney/principal of Dunson Group, LLC, a health care compliance consulting and law firm in Montgomery, Alabama. www.dunsongroup.com