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Finding the Balance With Privacy and Quality Care
Can we, as mental wellness practitioners strike a balance between respecting client privacy and providing convenient quality care? While the HIPAA Final Rule in some ways made things easier for us through clarifications, it has also seemingly closed the doors on some communication options when it comes to PHI (Protected Health Information). In this digital age where many people prefer texting to calling, is it fair for us to deny this convenience to our clients? As Dr. Rob Lamberts points out, HIPAA provides many necessary protections, but also instills fear in many. While he focuses on medical records, the same points he raises apply to things like texting and email. In my opinion, there are two main contributors to this ongoing fear related to HIPAA.
Flexibility vs. Lack of Clarity
The first involves a double-edged sword of sorts. Many parts of HIPAA/HITECH are left deliberately unspecific in their requirements. The reasoning is that this allows the law to be scalable. It would be impossible for the law to create specific provisions that would be fair to both large hospitals and solo practitioners. It even states that covered entities may not be liable for some measures if they prove to be technologically or cost-prohibitive. This scalability is a good thing. Unfortunately, it also brings with it a lot of questions. Primarily, who decides what is technologically or cost prohibitive? More so, what are we to do about non-compliant activities that clients insist on engaging us in?
This brings us to the second contributor. Technology, in many cases, is forced to adapt in reaction to HIPAA/HITECH. Many recent new products are a direct result of HIPAA/HITECH as well as Meaningful Use. They came into being because of the requirements set forth by these measures. The challenge here is that these technological advancements don’t happen over night. So, there has been repeated instances of lag time between when requirements are made and when technology that meets those requirements is available. In the case of solo and small group practices, there’s often the added prohibition of waiting until that technology is also affordable. Take these two factors and add a splash of differing interpretations of the law by attorneys and bloggers alike, and we acheive a volatile mix of fear of both the known and the unknown.
The keys to avoiding that fear, while providing quality, convenient care to clients are these:
- Document Your Risk Analysis – This is not optional if you are a Covered Entity. HIPAA requires that you document your analysis of the relative security of any PHI you store, maintain or transmit.
- Provide Informed Consent – The Final Rule does clarify that if you inform your clients of the risks of different forms of communication and they request that those forms of communiction be used anyway, then you have done your due diligence.
By adhering to these two guidelines and staying up to date on availability of compliant, affordable technology, even solo practitioners can maintain a balance between privacy and quality, convenient care.
As always, when dealing with issues of law, you are encouraged to seek the advice of a qualified attorney.
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Recommendations for technology, web sites, secure email, phone, credit card processing, therapy tools/interventions, podcasts, and much more!
In addition to using strong-passwords, and a password manager (I use LastPass), I strongly encourage everyone to use Multi-Factor Authentication (now, more commonly referred to as Two-Factor Authentication or 2FA) whenever possible.
About the Author
Rob has been covering technology and business news for mental health professionals since 2011. His extensive experience in IT, business, and private practice allow him to synthesize information in a friendly, digestible manner. He also enjoys time with his family, ultimate frisbee, and board gaming.