Legal Pitfalls of Electronic Patient Communication

Patients prefer it. Medicare's meaningful use program requires it. And within a few years, health information technology analysts predict that electronic communication will be par for the course in delivering patient care. Indeed, mobile devices and Web-based technology have provided new platforms to market your practice, transmit medical records, consult with other physicians, and maintain closer contact with patients, which are linked to better outcomes. But it also opens the door to privacy and security risks.

Typing a text message to a patient from a crowded restaurant, for example, where prying eyes could see, constitutes a privacy breach. So, too, does a post on your practice Facebook page that does not name patients individually, but provides enough information to identify a specific population - like an outbreak of head lice at a 5^th grade class in a "nearby parochial school." E-mail containing personal health information (PHI) can also land you in hot water with HIPAA if it gets delivered to the patient's work address and is intercepted by a colleague or employer. "That e-mail address is owned by the employer, so if you talk about a treatment plan for cancer an employer could potentially read it and make a hiring, firing, or promotion decision based on that information," says Robert Tennant, senior policy adviser for the Medical Group Management Association.

Penalties for HIPAA violations are based on the degree of negligence involved, but it's safe to say that the stakes are suddenly higher with passage of the omnibus final rule last year, which increased single violations for unsecured communication to $50,000, and boosted the maximum penalty to $1.5 million per year. That's not a maximum annual fine for your practice, merely the maximum for each set of repeat violations in a given year.

That's not to say healthcare providers should keep innovation at bay. Practices can and must adapt, says David Fleming, a primary-care doctor and president of the American College of Physicians. "E-communication tools have really given patients a lot more options to get a hold of their healthcare providers," says Fleming, noting he uses e-mail regularly to check in with patients using his university's secure site. "Patients increasingly expect to be able to communicate with their clinical team electronically, because that's how they communicate with everyone else. It's standard care now." But if they hope to protect their practice, he adds, providers must also ensure that the e-tools they deploy and the information they send are compliant with privacy standards. "Technology can really enhance the doctor-patient relationship, but like any innovation we have to be cautious with how we use it."

Social media minefields

Social networking outlets, which are public forums, are particularly problematic. Facebook and Twitter are not encrypted and, thus, only appropriate for use as a marketing tool, says Art Gross, chief executive officer of HIPAA Secure Now, a consulting firm in Morristown, N.J. According to the HIPAA omnibus rule, all business associates to whom a medical practice discloses PHI, including transcriptionists and attorneys, must sign a business associate agreement (BAA), stating they will act to protect that information. "Facebook and Twitter won't sign a BAA, which makes that form of communication noncompliant," says Gross.

To mitigate exposure risk on social media sites, practices and providers should never refer to a patient by name or disclose any information that could be used to identify a patient or group of patients, says Gross. Tread carefully, too, with the photos that get posted to your Facebook page (and website), which may inadvertently capture patients in the background, or a paper chart laying open - that could be enhanced to reveal PHI, he says.

Practices that maintain a Facebook page must strictly limit the content that gets posted. A cardiology center, for example, might include generic educational material to help prevent heart disease, promote a new service, or announce a new hire, but it should not include details about patients who took part in their latest diabetes management class.

A brief by HIPAA compliance consulting firm MedSafe/Total Compliance Solutions, which is posted on the American Association of Orthopaedic Executives website (bit.ly/social-media-HIPAA), offers other tips for avoiding HIPAA violations on social media. They include keeping your personal and professional life separate by setting up a different account to communicate with friends and family, and using different passwords to differentiate the accounts.

Providers should never "friend" patients on Facebook, it notes, as that could lead to serious ethical issues, and the inadvertent disclosure of a patient-physician relationship. Likewise, providers should understand the platform they are using and how it works. For example, understanding the difference between using the "@" symbol and a direct message on Twitter could prevent the wrong information from getting into the wrong hands.

MedSafe also points out that providers should be as general as possible about conditions or treatments, never reference a particular case, and never describe specific demographics or populations that can be identified. Check your privacy settings regularly, too, preferably once a week, as they can change. "Never post anything that you would be uncomfortable reading reprinted in the newspaper," the brief recommends.

Robert Goodson, a healthcare attorney with Wilson Elser Moskowitz Edelman & Dicker in Washington, D.C., also recommends your practice establish policies and procedures governing your employees' use of social networking sites, since employers face direct liability for privacy violations committed by their workforce, both on the job and during non-working hours. All healthcare workers are prohibited under HIPAA from disclosing individually identifiable health information without written authorization from the individual. Establish policies and procedures to prohibit your staff from discussing their workday or specific cases, even when they do not disclose the patient's name or what appears to be protected information. It's wise, too, to put your policy in writing in your employee manual, have your employees sign it, and provide ongoing training so your support staff understands clearly both the consequences and the definition of a privacy breach.

More generally, the American College of Physicians recommends that all practices establish guidelines for office staff, physicians, and patients that clearly define appropriate uses of electronic communications. They should indicate that e-mail should not be used for urgent matters, the types of messages that are accepted (prescription refills, appointment scheduling, etc.), a specific turnaround time for messages, and who besides the physician will read and respond to messages, and with whom they may be shared.

Texting

Like social media content, traditional SMS text messages sent via smartphones are noncompliant. Such messages can be read or forwarded to anyone, and live in perpetuity on the receiver's mobile phone and telecommunication companies' servers. For that reason, the Joint Commission has indicated that "plain" texting is not acceptable for any communication that contains PHI.

Texting other doctors, and unsecure messages that get sent among your administrative staff, could also expose your practice to privacy and security violations, says Gross, depending on whether enough information is disclosed to identify an individual or demographic. "When we do risk assessments, most practices think their EHR is the biggest risk, but when e-mail and text messaging are sent from your unsecure smartphone that is a reportable breach," says Gross. "Patient information is no longer just in your EHR and that's a risk your entire organization faces."

To enhance patient access without running afoul of privacy laws, you must use a secure electronic messaging service, which are sometimes offered by EHR vendors. Some, like Tigertext, are designed to enable HIPAA-compliant texting between healthcare providers and among healthcare organization support staff. Others, like Doc Halo, also offer secure texting between doctors and patients, enabling healthcare providers to promote care coordination between visits, address patient questions and concerns, and handle routine nonclinical tasks remotely such as medication refills and referrals.

E-mail

E-mail with encryption software, however, which converts the message to unreadable text for unauthorized recipients, is far and away the favored tool for corresponding with patients. If your patient's PHI is stored in an encrypted device that gets lost, stolen, or hacked - be it laptop or smartphone - your practice will not be required to report the breach to HIPAA or pay the fine, says Tennant. "Encryption software is relatively inexpensive, but a very effective way of dealing with confidentiality and security," he says. "It solves an awful lot of problems and it's a lot cheaper to encrypt than it is to deal with a data breach."

Not all e-mail services, however, are created equal. According to Gross, AOL, Yahoo, Optonline, and Comcast will not sign a BAA, rendering them ineligible for HIPAA compliant communication.  Microsoft and Google will sign it. Other options exist as well, including HIPAA-compliant encrypted e-mail products such as mdEmail, Safety Send, Email Pros, and Physicians Advantage. Typically, both the patient and provider must be members of the same service to utilize the technology securely.

DirectTrust, a network of more than 4,000 healthcare organizations, takes it one step further, offering secure electronic communication for the transfer of PHI with identity authentication. The nonprofit alliance partnered with the Electronic Healthcare Network Accreditation Commission to develop an accreditation program for "trusted agents," which include Health Internet Service Providers, certificate authorities, and registration authorities. "We use point-to-point encryption of the e-mails plus attachments to anyone who has a direct address with an accredited organization," says David Kibbe, president and chief executive of DirectTrust. "It's very important to not only encrypt the message going from person A to person B, but also that person A and person B are who they say they are. That's new to a lot of people."

Be aware that HIPAA privacy rules do not pertain to your patient. "They can send you an unencrypted e-mail with their whole life story, but if you the provider get that message and reply to it without using encryption, in however generic a manner, you've now sent that protected information back out there," says Gross. "You need to be sure it's secure on the way back."

He notes, too, that when patients ask you to send them e-mail or texts without encryption, the provider has to comply under HIPAA rules. "The patient may feel that the encryption technology is too hard to read, and they're willing to take the risk," says Gross. "You have to do what the patient wants under HIPAA." To protect your practice, however, just be sure you've spelled out all the risks, and get that authorization in writing, he says.

Lastly, keep in mind you can easily sabotage your practice, and providers often do, by copying PHI that is stored securely behind their EHR firewall onto an unencrypted laptop, tablet, or portable USB drive to review at home, or by sending the patient's records to themselves via unencrypted e-mail.

With all the legal landmines that exist, it's understandable that many physicians have dragged their feet in deploying e-communication tools. But texting, e-mail, and social media can greatly enhance the provider-patient relationship and most risks can be mitigated with some basic security measures, an understanding of the HIPAA rules, and adequate employee training. "Like any technology, it can be great and much more convenient," says Fleming. "But I always make sure my patients have a full understanding of the confidentiality concerns that exist. It must be used prudently and carefully so it has the intended outcomes."

*Communicating electronically with patients may be convenient, but it's also risky. Visit bit.ly/five-missteps to view five things physicians should never do when communicating with patients electronically.

In Summary

Known for its ease of use, electronic communication with patients is fraught with complexity. Here are ways to avoid possible legal actions:

• Never post information on social media sites that could be used to identify a patient or group of patients.

• Always use a secure electronic messaging service when texting with patients and others.

• Never assume the e-mail you are using has encryption software; ask your vendor or provider.

• Always get specific HIPAA authorization from your patients in writing, spelling out how information is communicated.

Shelly K. Schwartz, a freelance writer in Maplewood, N.J., has covered personal finance, technology, and healthcare for more than 20 years. Her work has appeared on CNBC.com, CNNMoney.com, and Bankrate.com. She can be reached via editor@physicianspractice.com.

This article originally appeared in the July/August 2014 issue of Physicians Practice.