Does a privacy statement make your email HIPAA compliant?

While privacy statements do not ensure HIPAA compliance, they are often part of an organization's broader compliance framework.

What is an email privacy statement?

An email privacy statement, also known as an email privacy policy or email privacy notice, is a document that outlines how an organization handles email communications and protects the privacy of individuals' information contained within those emails. It is typically included in the footer of emails the organization sends and may also be available on the organization's website.

The purpose of an email privacy statement is to inform recipients about the organization's practices regarding the collection, use, and disclosure of personal information transmitted via email. This information may include:

1. Collection of information: The statement may describe what types of personal information are collected through email communication, such as email addresses, names, or any other information provided by the recipient.
2. Use of information: It may explain how the organization uses the information collected through email, whether it's for communication purposes, marketing, customer service, or other legitimate business purposes.
3. Disclosure of information: The statement may address under what circumstances, if any, the organization shares or discloses the information collected through email communication with third parties.
4. Security measures: An email privacy statement may outline the security measures implemented by the organization to protect the confidentiality and integrity of email communications and the information contained within them. This may include encryption protocols, secure storage practices, and measures to prevent unauthorized access.
5. Opt-out options: It may provide instructions on how recipients can opt out of receiving certain types of emails or how they can update their preferences regarding email communication from the organization.
6. Legal compliance: The statement may include information about the organization's compliance with relevant laws and regulations governing email communication and data privacy, such as the CAN-SPAM Act in the United States or the GDPR in the European Union.
7. Contact information: An email privacy statement often includes contact information for individuals with questions or concerns about the organization's email privacy practices, such as a designated privacy officer or customer support representative.

Since privacy statements can be used as disclaimers, organizations use them as their scope disclaimers expand. “As a new possible risk pops up, they add another few lines to their email disclaimer, attempting to cover every potential contingency that could conceivably arise from sending an email. They add, but they never take away,” says Cenkus Law.

Ensuring HIPAA compliance

The HIPAA security rule requires covered entities to implement strict measures for protecting electronic PHI. These requirements cover a broad range of areas, including technical safeguards, access controls, secure transmission methods, and encryption. Establishing HIPAA compliance demands a comprehensive approach addressing both the technological and procedural dimensions of safeguarding patient information.

The role of privacy statements in HIPAA compliance

Privacy statements enhance transparency, establishing trust, and guiding individuals on how their protected health information (PHI) is handled. While HIPAA primarily focuses on regulatory requirements for covered entities and business associates, privacy statements serve as a means for organizations to communicate their commitment to privacy and compliance with patients and clients. Here's how privacy statements contribute to HIPAA compliance:

Transparency and accountability

• Privacy statements provide individuals with clear information about how their information is collected, used, disclosed, and protected by the organization.
• By openly disclosing privacy practices, organizations demonstrate transparency and accountability, which are fundamental principles of HIPAA compliance.
  
  

Informed consent

• Privacy statements often include information about individuals' rights regarding their information, such as the right to access, amend, and request restrictions on the use or disclosure.
• This helps individuals make informed decisions about sharing their information and allows them to exercise their rights under HIPAA.
  
  

Notice of Privacy Practices (NPP)

• HIPAA requires covered entities to distribute a Notice of Privacy Practices (NPP) to patients outlining their privacy rights and how their PHI may be used and disclosed.
• Privacy statements can serve as a condensed version of the NPP, providing a brief overview of privacy practices to patients in various communication channels, including emails, websites, and patient portals.
  
  

Building trust and confidence

• Privacy statements reassure individuals that their privacy is a top priority for the organization.
• By clearly articulating privacy practices and commitments, organizations build trust and confidence among patients, clients, and other stakeholders, which is essential for maintaining strong relationships and compliance with HIPAA.
  
  

Compliance framework

• Privacy statements can align with HIPAA requirements by addressing privacy and security principles, such as data encryption, access controls, security incident response, and business associate agreements.
  
  

Communication and education

• Privacy statements serve as educational tools, helping individuals understand their rights and responsibilities regarding their information.
• By providing clear and accessible information, organizations empower individuals to make informed choices and take proactive steps to protect their privacy.
  
  

Continuous improvement

• Privacy statements reflect an organization's commitment to continuous improvement in privacy and security practices.
• Regularly updating and reviewing privacy statements allows organizations to adapt to changing regulations, technological advancements, and evolving privacy risks, thus enhancing overall HIPAA compliance.
  
  

Limitations of a privacy statement

While privacy statements are an essential aspect of maintaining transparency and establishing trust between organizations and individuals regarding the handling of PHI, they have limitations in achieving full compliance with the Health Insurance Portability and Accountability Act (HIPAA). 

Understanding these limitations ensures that healthcare organizations have comprehensive measures in place to meet HIPAA requirements. Here are some limitations of privacy statements in HIPAA compliance:

• Encryption: HIPAA mandates the use of encryption to secure PHI during transmission. A privacy statement may mention encryption practices, but it doesn’t guarantee that emails containing PHI are encrypted. Without encryption, emails are vulnerable to interception and unauthorized access.
• Enforceability: Privacy statements, while informative, are not legally binding documents like the HIPAA Privacy Rule. They do not have the same level of enforceability as the regulations outlined in HIPAA. Therefore, relying solely on a privacy statement may not provide sufficient legal protection in the event of a compliance audit or investigation.
• Technical implementation: Privacy statements may describe an organization's commitment to protecting PHI, but they do not ensure that the technical safeguards required by HIPAA are effectively implemented. 
• Access controls: HIPAA requires implementing access controls to restrict unauthorized access to PHI. A privacy statement may state that access to patient information is limited to authorized personnel, but it doesn’t provide the technical mechanisms needed to enforce access controls in email communication.
• Security measures: To comply with HIPAA regulations, the organization must put into effect security measures like firewalls, antivirus software and intrusion detection systems. Simply stating a privacy commitment doesn't guarantee that these email-specific safety protocols are actually in place.
• Business associate agreements (BAAs): HIPAA requires covered entities to enter into BAAs with their business associates who handle PHI. While a privacy statement might mention the organization’s commitment to protecting patient information, it doesn’t establish the legal agreements necessary to ensure that business associates adhere to HIPAA regulations.

Recommendations for achieving HIPAA compliance for email communication

To ensure HIPAA compliance in email communication, organizations must implement specific measures:

• Encryption: Use encryption protocols (e.g., TLS) to secure email transmissions containing PHI.
• Access controls: Implement access controls to restrict access to PHI only to authorized personnel.
• Secure email platforms: Use secure email platforms that comply with HIPAA standards and provide encryption and access control features, like the Paubox Email Suite.
• Training and policies: Train employees on HIPAA regulations and establish policies and procedures for handling PHI via email.
• Policies and procedures: Develop and implement comprehensive policies governing the communication of electronic PHI.
• Business associate agreements: Execute BAAs with third-party service providers involved in handling PHI.

FAQs

What is the difference between HIPAA compliance and a privacy statement?

HIPAA compliance refers to adhering to the regulations outlined in the HIPAA law to protect the privacy and security of PHI. A privacy statement, on the other hand, is a document or statement that outlines an organization's privacy practices, including how it collects, uses, and protects personal information, but it does not ensure HIPAA compliance on its own.

What is a business associate?

According to HIPAA, a business associate is “a person or entity that performs certain functions or activities that involve the use or disclosure of protected health information on behalf of, or provides services to, a covered entity.”

Go deeper: What does it mean to be a business associate?

Are there penalties for HIPAA violations?

HIPAA violations can lead to both civil and criminal penalties, which vary based on the seriousness of the violation and whether it was due to willful neglect. Civil penalties are categorized into four tiers based on the level of negligence or intent, ranging from $100 to $50,000 per violation, with an annual maximum of $1.5 million. For instances of willful neglect, fines can escalate significantly, potentially reaching $50,000 per violation, with the same annual maximum. Criminal penalties may also apply, with fines ranging from $50,000 to $250,000 and imprisonment for up to ten years, particularly in cases involving deliberate misuse or unauthorized disclosure of protected health information.

Go deeper: What are the penalties for HIPAA violations?