Navigating HIPAA compliant email for therapists

Therapists operate in a uniquely sensitive part of healthcare, where patient interactions often involve deeply personal discussions, protected health information (PHI), and long-term therapeutic relationships built on trust. Therapists who comply with the regulations stipulated by the Health Insurance Portability and Accountability Act (HIPAA) demonstrate their dedication to safeguarding patients' sensitive information. According to the US Department of Health and Human Services (HHS), “Ensuring strong privacy protections is critical to maintaining individuals’ trust in their health care providers and willingness to obtain needed health care services, and these protections are especially important where very sensitive information is concerned, such as mental health information.” For therapists, this means that privacy safeguards are more than administrative formalities; they’re an essential part of patient care.

Furthermore, compliance also ensures that they avoid potential penalties that may arise from a HIPAA breach. 

What is PHI?

PHI includes all health information that can identify an individual and is maintained or transmitted by a covered entity or its business associate, regardless of its form (electronic, paper-based, oral). This information relates to the individual's past, present, or future physical or mental health condition, the provision of healthcare to the individual, or the payment for healthcare services. Examples of PHI include:

• Patient names
• Dates of birth
• Addresses
• Social Security numbers
• Medical record numbers
• Health insurance policy numbers
• Diagnosis or treatment information
• Lab results
• Imaging studies
• Any other information that could reasonably be used to identify the individual's health status or care provision.

Go deeper: What are the 18 PHI identifiers? 

Psychotherapy notes

Under HIPAA, psychotherapy notes receive a higher level of protection than standard PHI due to their sensitive nature. As the HHS notes, “the Privacy Rule applies uniformly to all protected health information, without regard to the type of information. One exception to this general rule is for psychotherapy notes, which receive special protections.” These notes are the personal documentation a therapist creates during a counseling session, capturing impressions, observations, and details that are not part of the patient’s formal medical record. However, “Psychotherapy notes do not include any information about medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, or results of clinical tests; nor do they include summaries of diagnosis, functional status, treatment plan, symptoms, prognosis, and progress to date. Psychotherapy notes also do not include any information that is maintained in a patient’s medical record,” says the HHS. 

Because psychotherapy notes often contain deeply personal reflections about a patient’s thoughts, feelings, and experiences, HIPAA requires a “patient’s authorization prior to a disclosure of psychotherapy notes for any reason, including a disclosure for treatment purposes to a health care provider other than the originator of the notes… A notable exception exists for disclosures required by other law, such as for mandatory reporting of abuse, and mandatory “duty to warn” situations regarding threats of serious and imminent harm made by the patient.” This distinction indicates their unique sensitivity and reinforces the importance of safeguarding them in therapeutic practice.

HIPAA regulations

HIPAA regulations are federal laws enacted in 1996 to protect patients' sensitive health information. These regulations aim to safeguard individuals' privacy and ensure the security of their PHI while facilitating the exchange of healthcare data. Core HIPAA regulations include:

HIPAA Privacy Rule

The HIPAA Privacy Rule establishes national standards to protect individuals' medical records and other PHI held by covered entities and their business associates. It grants patients rights regarding their PHI, including access to their records and the ability to request corrections. The rule regulates the use and disclosure of PHI, requiring authorization for most disclosures. Covered entities must also maintain the security of PHI and enter into agreements with business associates to ensure compliance.

HIPAA Security Rule

The HIPAA Security Rule sets national standards for safeguarding electronic protected health information (ePHI). It requires covered entities and business associates to implement administrative, physical, and technical safeguards to ensure the confidentiality, integrity, and availability of ePHI.

HIPAA Breach Notification Rule

The HIPAA Breach Notification Rule requires covered entities and business associates to notify affected individuals, the U.S. Department of Health and Human Services (HHS), and, in some cases, the media, in the event of a breach of unsecured PHI. A breach is defined as “an impermissible use or disclosure under the Privacy Rule that compromises the security or privacy of the protected health information.” Notifications must be provided without unreasonable delay and no later than 60 days after discovering the breach.

HIPAA Enforcement Rule

The HIPAA Enforcement Rule outlines procedures for investigating complaints of HIPAA violations and imposing penalties for non-compliance. It authorizes the HHS Office for Civil Rights (OCR) to conduct compliance reviews, investigations, and audits and to impose civil monetary penalties for HIPAA violations. The Enforcement Rule ensures accountability and encourages covered entities and business associates to adhere to HIPAA regulations to avoid penalties and maintain patient privacy and security.

The importance of HIPAA compliance

• Protection of patient privacy: Compliance with HIPAA regulations ensures that patients' PHI remains confidential.
• Ethical responsibility: HIPAA compliance ensures that physical therapists respect patient privacy as an ethical obligation.
• Mitigating risks and liabilities: Compliance with HIPAA regulations helps mitigate the risks of data breaches and associated liabilities.
• Facilitating interoperability and data exchange: HIPAA compliance standards promote standardized electronic transactions and secure data exchange between healthcare entities. 

The article Health Insurance Portability and Accountability Act (HIPAA) Compliance by Peter Edemekong et al. notes that “HIPAA regulations uphold patients' rights to confidentiality and empower them to control the disclosure of their health information, fostering trust in healthcare systems.”

Ensuring HIPAA compliance

To guarantee adherence to HIPAA regulations, physical therapists can employ several strategies customized for protecting PHI. These measures include:

• Staff training: Provide thorough HIPAA training to all staff members, ensuring they understand their roles and responsibilities in protecting PHI.
• Policies and procedures: Develop and implement comprehensive HIPAA policies and procedures tailored to the specific needs of your practice. 
• Access controls: Limit access to PHI to authorized personnel by implementing physical and electronic access controls to prevent unauthorized access.
• Secure communications: Use encrypted email, secure messaging platforms, or other secure methods for transmitting PHI to ensure confidentiality and prevent unauthorized interception.
• Physical security: Safeguard physical records containing PHI by storing them in locked file cabinets or rooms accessible only to authorized personnel.
• Data encryption: Encrypt ePHI both in transit and at rest to protect it from unauthorized access or disclosure.
• Business associate agreements (BAAs): Ensure that business associates sign BAAs outlining their responsibilities for protecting PHI.
• Patient consent and authorization: Obtain explicit consent or authorization from patients before disclosing their PHI for purposes other than treatment, payment, or healthcare operations.
• Risk assessment and management: Conduct regular risk assessments to identify vulnerabilities in your systems and processes and implement measures to mitigate those risks.
• Breach response plan: Develop a comprehensive breach response plan outlining steps to be taken in the event of a breach, including containment, notification of affected individuals and regulatory authorities, and mitigation of harm.
• Documentation and recordkeeping: Maintain thorough documentation of HIPAA compliance efforts, including policies, procedures, training records, risk assessments, and breach response activities.
• HIPAA privacy officer: Designate a HIPAA privacy officer responsible for overseeing HIPAA compliance efforts, responding to patient inquiries, and addressing privacy concerns.

Related:

• A guide to HIPAA and access controls 
• HIPAA Compliant Email: The Definitive Guide

Penalties for violating HIPAA regulations

Physical therapists, like all covered entities under HIPAA, can face penalties for violations of HIPAA regulations. The penalties can vary depending on the severity of the violation, the organization's level of culpability, and whether the violation was due to willful neglect or not.

Here are the types of penalties that physical therapists could face for HIPAA violations:

Civil monetary penalties (CMPs)

• Tier 1: Violations due to reasonable cause and not due to willful neglect. The penalty ranges from $141 to $71,162 per violation, with an annual maximum of $2,067,813 for all violations of an identical provision.
• Tier 2: Violations due to willful neglect but corrected within the required time period. The penalty ranges from $1,424 to $71,162 per violation, with an annual maximum of $2,067,813 for all identical violations.
• Tier 3: Violations due to willful neglect and not corrected. The penalty is a minimum of $14,232 per violation, with an annual maximum of $2,067,813 for all identical violations.

Read more: Higher HIPAA penalties announced

Criminal penalties

Criminal penalties can result from certain HIPAA violations, particularly those involving the intent to sell, transfer, or use PHI for commercial advantage, personal gain, or malicious harm. Criminal penalties can include fines and imprisonment, with potential sentences ranging from one to ten years, depending on the severity of the offense.

Go deeper: Understanding criminal penalties for HIPAA violations

Corrective action plans (CAPs)

In addition to monetary penalties, the OCR may require covered entities to implement corrective action plans to address HIPAA compliance deficiencies and prevent future violations. Failure to comply with a CAP can result in further penalties.

State attorney general enforcement

State attorneys general have the authority to bring civil actions on behalf of state residents for HIPAA violations. This can result in additional fines and penalties imposed by state law.

Go deeper: What are the penalties for HIPAA violations?

FAQS

Who enforces HIPAA?

The Department of Health and Human Services (HHS) Office for Civil Rights (OCR) is responsible for enforcing HIPAA regulations.

Go deeper: Who is responsible for enforcing HIPAA?

How can therapists stay updated on HIPAA regulations and best practices?

To stay informed, therapists can regularly review guidance from the OCR, participate in HIPAA training and educational programs, and consult with legal and compliance professionals.