E-Mailing, Texting, and the Use of Personal Devices by Health Care Professionals – HIPAA and Privacy Myths vs Reality
Mark R. Brengelman focuses on representing health care practitioners before licensure boards and in other professional regulatory matters. He also represents children as Guardian ad Litem and parents as Court Appointed Counsel in confidential child dependency, neglect, and abuse proceedings in family court.
Mark became interested in law when he graduated with both Bachelor’s and Master’s degrees in Philosophy from Emory University in Atlanta. He then earned a Juris Doctorate from the University of Kentucky College of Law. Mark became an Assistant Attorney General for Kentucky in the area of administrative and professional law as the assigned counsel and prosecuting attorney to numerous health professions licensure boards.
Retiring from the state government in 2012, Mark became certified as a hearing officer and opened his own law practice. Mark registered as legislative agent (lobbyist) for the Kentucky Association of Pastoral Counselors for the passage of Senate Bill 61 by the 2014 General Assembly. He is the immediate past Chair of the Health Law Section of the Kentucky Bar Association.
As a frequent participant in continuing education, Mark has been a presenter for thirty national and state organizations and private companies. These include the Kentucky Bar Association, Kentucky Office of the Attorney General, the National Attorneys General Training and Research Institute, the Federation of Associations of Regulatory Boards.
Mark was also the founding presenter in 2013-14 for “Navigating Ethics and Law for Mental Health Professionals,” a continuing education training approved by five Kentucky mental health licensure boards. He also founded in 2017 “The Kentucky Code of Ethical Conduct: Ethical Practice; Risk Management, and; the Code of Ethical Conduct” as an approved, state-mandated continuing education for social workers.
This informative webinar begins with the most basic of questions: Does the HIPAA Privacy Rule permit health care providers to use e-mail to discuss health issues and treatment with their patients?
Find out the answer and examine how the privacy rules of HIPAA allow covered entities and health care providers to communicate electronically, such as through e-mail or texting, with their patients and with other health care practitioners, but only provided those health care practitioners apply reasonable safeguards when doing so. This is mandated by federal administrative regulation. Specifically, certain precautions need to be taken when using e-mail to avoid unintentional disclosures, such as checking the e-mail address for accuracy before sending or sending an e-mail alert to the patient for address confirmation prior to sending the message.
Further, while the HIPAA privacy rules do not prohibit the use of unencrypted e-mail for treatment-related communications between health care providers and patients, other safeguards should be applied reasonably to protect privacy, such as limiting the amount or type of information disclosed through the unencrypted e-mail. The health care practitioner may include the least amount of protected health information in an unencrypted e-mail. In addition, covered entities must make sure any transmission electronically of protected health information follows the HIPAA Security Rule requirements of federal law.
Patients have the right under the HIPAA privacy rules to request and have a covered health care provider communicate with them by alternative means or at alternative locations, if reasonable. For example, a health care provider should accommodate an individual’s request to receive appointment reminders via e-mail, rather than on a postcard, if e-mail is a reasonable, alternative means for that health care practitioner or provider to communicate with the patient.
However, if the use of unencrypted e-mail is unacceptable to a patient who requests confidential communications, other means of communicating with the patient, such as by more secure electronic methods, or by mail or telephone, should be offered and accommodated. The patient may also designate a particular e-mail address to use, such as the patient’s personal e-mail and not their work e-mail.
Patients may even initiate communications with a health care practitioner or other provider using e-mail. If this situation occurs, the health care provider can assume (unless the patient has explicitly stated otherwise) that e-mail communications are acceptable to the individual. This is implied consent and implied usage. If the health care practitioner or other provider feels the patient may not be aware of the possible risks of using unencrypted e-mail or has concerns about potential liability, the provider can alert the patient of those risks, and let the patient decide whether to continue e-mail communications.
Uncertainty exists when faced with strict laws. Erase the fear, uncertainty, and doubt by reviewing how patient consent and communication practices can be updated to allow for specific means of electronic communication. Further erase the uncertainty, fear, and doubt about what other laws, such as state licensure laws, apply to the confidentiality of patient protected health information. Review further some examples of specific state licensures laws that apply to electronic communications that may be stricter than even HIPAA itself.
This webinar is thus an advanced overview of the many rules, both by HIPAA at the federal level and in state licensure laws, that govern e-mailing and texting with the patient and with other health care practitioners.
- The basics of HIPAA privacy
- The basics of HIPAA and the use of electronic communications
- Examples of state licensure laws governing protected health information
- Elements of privacy notices and communications practices with patients
- Bonus: website confidentiality and privacy disclaimers for the health care practitioner with their own website
Course Level - Advanced
Who Should Attend
- Individual health care practitioners
- Health care attorneys
- Teachers and educators in graduate-level medical education across the many health care professions
- Corporate counsel in health care
Why Should Attend
While the basic provisions of privacy for protected health information are well known, their application in today’s world of electronic and personal communication devices is complex – such as texting, e-mailing, and using personal devices such as smartphones and tablet computers. In addition to HIPAA rules, various state licensure laws exist to require confidential information to be kept confidential.
Many security rules regarding protected health information involving how and when protected health information is to be kept confidential and not accessible to others outside of direct patient care. But what is protected health information? Can communications not involve such protected health information be transmitted by non-confidential and non-secure methods? Is even a patient name protected health information?
The ability to text or e-mail health care practitioners and other staff and patients has become a priority for many health care entities and practitioners, especially solo health care practitioners with limited support staff. Maintaining patient privacy and confidentiality is necessary to make sure covered entities meet compliance standards of HIPAA and state licensure laws. Although e-mailing and texting are convenient for the health care practitioner and patient, these communication methods have security risks and inherent pitfalls. Implementing e-mail and text solutions in the health care setting is a complex issue and several factors must be addressed.
Erase the fear, uncertainty, and doubt about exactly how a health care practitioner may use modern texting and e-mail, both within their own health care organization or facility and to the outside world of patients. Find out how these communications may or may not be required to be retained by the health care practitioner. Finally, examine easy guidelines for the health care practitioner in a solo or small group setting can use e-mail and texts without violating patient confidentiality under HIPAA as well as state licensure laws.