Further Considerations for Compliant Texting
Providers may want to also consider whether any third party
uses or discloses ePHI when texting occurs. With respect to
telecommunications providers, the Department of Health and
Human Services has stated that entities acting only as conduits
of ePHI and that do not access the information other than on a
random or infrequent basis as necessary for the performance of
the transportation service do not qualify as business associates. 9
In contrast, if texts are being stored indefinitely on a third
party’s server, such as when a text is sent to an e-mail account
of a member of the workforce and the e-mail account is administered by a third party, then a business associate contract with
the third party may be required.
Finally, providers may wish to address the use and disclosure
of ePHI in their privacy policies and training and should consider sanctioning members of the workforce who violate such
policies. Providers must also consider whether texts of PHI are
subject to the HIPAA accounting of disclosures and, if so, whether they need to be included in a disclosure log.
There is no one-size-fits-all solution; different organizations
may arrive at different conclusions regarding the threat posed
by texting of PHI and what combination of controls reduces risks
to a reasonable and appropriate level. There are some controls
that are simply not going to be available for traditional texting,
such as centralized audit controls that allow the IT department
to monitor texts containing PHI.
Each healthcare organization must decide whether it will prohibit or allow texting. This may be a fluid process, requiring the
monitoring and reevaluation of policies to determine if they are
effective. It is ultimately imperative to recognize both the value
and risks of texting and to proactively address the issues. ¢
1. comScore. “comScore Reports October 2011 U.S. Mobile
Subscriber Market Share.” Press release. December 2,
Adam H. Greene ( firstname.lastname@example.org) is a partner at Davis Wright Tre-maine LLP.
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