Understanding Legal Issues of Communication in Healthcare

All legal communication is conducted in the shadow of restrictions involving privileged communication. Nowhere is this truer than when legal affairs intersect with the healthcare industry. In addition to the general principles regulating all legal communication, lawyers specializing in healthcare-related practice must be aware of how HIPAA regulations impact the handling of healthcare communications.

This includes knowing how sensitive healthcare data can potentially be compromised by communications software security issues. Choosing the right software is critical for protecting your client and protecting your firm from liability. Here’s a look at how legal issues in communication in healthcare are affected by software selection, along with some guidelines for selecting the right communications software.

Legal Issues in Communication in Healthcare

Several sets of legal principles bear relevance to healthcare-related communications:

  • Privileged Communications: Attorneys specializing in healthcare-related issues, like all attorneys, operate under the mandate to protect information exchanged in the course of attorney-client relations. Communications between clients and their attorneys are governed by the attorney’s responsibility to preserve client confidentiality. Information communicated confidentially by clients cannot legally be disclosed by their attorneys or others among their attorney’s coworkers or third-party providers without express consent. Courts cannot compel an attorney to disclose confidential information without a waiver from the client. Laws governing privileged communications vary from state to state, and there are also some exceptions. Information disclosed to third parties outside of confidential meetings, such as information discussed among a group in a bar, is not protected by attorney-client privilege. Another exception is when a client communicates information to an attorney with the intent of covering up a crime.
  • Physician-Patient Privilege: Attorneys specializing in healthcare should also be aware that healthcare providers also operate under a version of privileged communications, known as physician-patient privilege. Physicians cannot legally disclose information provided by patients during treatment, even in court, without a patient waiver. As with attorney-client privilege, there are exceptions. For instance, a discussion with a doctor among a group of golfers would not fall under physician-patient privilege, and a physician treating a patient with a communicable venereal disease may be required to report the situation to the state health department.
  • HIPAA Regulations: Healthcare data is further protected by the provisions of the Health Insurance Portability and Accountability Act (HIPAA). HIPAA includes a Privacy Rule that encompasses both physical and electronic healthcare protected health information (PHI), as well as a Security Rule governing electronic protected health information (EPHI), along with rules covering other areas, such as a Breach Notification Rule. These rules apply both to healthcare providers and to their “business associates,” which can include attorneys.

Attorneys specializing in healthcare-related matters must be conscious of how each of these areas may affect their communications with their clients.

How Legal Issues Affect Communications Software Selection?

One important facet of healthcare legal issues is their bearing on software selection. Healthcare data is a tempting target for identity thieves. Digital communication channels may be hacked by cyberthieves or compromised by other types of security breaches such as ransomware. Digital channels at potential risk include:

  • Voice over Internet (VoIP) phone services
  • Interactive voice response (IVR) systems
  • Email
  • Web chat
  • Texting
  • Video chat
  • Unified communications as a service (UCaaS)
  • Contact center as a service (CCaaS)

To protect your communications with clients on all fronts, you need to make sure any of these channels you use are secure. HIPAA regulations require that the software and third-party providers you use meet regulatory standards for security. Additionally, if you accept payments digitally, you are required to meet PCI DDS standards for online payment processing.

Choosing the Right Communications Software Provider

These obligations make it imperative to consider carefully when choosing software providers. HIPAA regulations are exceedingly complex, and the best way to make sure you meet requirements is to choose a provider who already fulfills HIPAA compliance. In order to evaluate a provider’s suitability, you should ask questions about their security standards. Key question to ask include:

  • What security measures do they take to protect user data?
  • Do they protect data in storage and in transmission with encryption?(7)
  • Are they HIPAA compliant?
  • If digital payments will be involved, are they PCI compliant?
  • Is their compliance verified by an independent third-party review?
  • Do they provide written guarantees of their compliance with applicable standards?
  • Do they offer assistance with configuring software for your security needs?

Using these types of questions to evaluate providers will help ensure that your clients’ healthcare data stays safe, protecting your law firm from liability.

Protecting Healthcare-related Communication

General privileged communications principles, their application to physician-patient privilege, and HIPAA regulations all apply when protecting healthcare-related communications. Communications software tools should be carefully selected to meet applicable standards.

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