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Law \ Legal

Getting Healthcare in 2023 and Beyond…Virtually…and Securely


Much is being written about “remote work” – is it productive, will demand for it continue or be curtailed in a recession, is cybersecurity compromised, does it inhibit workplace culture, collaboration, etc. Lots of questions, few clear answers. The discussion seems largely centered on office workers, professional services providers like me, who generally can perform the basic functions of our jobs just about anywhere.

But “virtual” nurses?

Well, yes, this should not come as a surprise, considering the growth of telehealth, in particular during the COVID-19 pandemic. For many reasons, using digital information and communication technologies to deliver healthcare services can provide enormous benefits to the overall healthcare system. Indeed, predictions from many leaders in healthcare see expanded use of remote patient care and monitoring, along with other technologies such as artificial intelligence, robotics, and wearables.

As with any significant shift in an organization’s business model, however, there are likely to be some challenges and risks. Among those risks is that individually identifiable health information of patients can become potentially more vulnerable in a remote work environment.

Keep in mind that large health systems are not the only providers of healthcare that can benefit from the virtual delivery of certain healthcare services, including patient monitoring. Similar benefits can be derived by “home” healthcare providers, mental health counselors and therapists, surgical practices, other categories of providers, and their patients. Yet, many of the same data-related risks and compliance challenges remain:

HIPAA Compliance. There are many aspects of the HIPAA privacy and security regulations that need to be considered. Covered entities should conduct and document a risk assessment to understand the threats and vulnerabilities of a new or enhanced remote work arrangement (including new devices and equipment that facilitate the arrangement). Policies and procedures may need to be amended or created based on the findings of the assessment, such as enhanced security and training, review of remote work environment, revisions to data retention and destruction procedures, and procedures related to a change or termination of a remote worker’s employment.

Contractual Requirements. Providers may have contract obligations limiting their ability to deliver services remotely. It is not uncommon to see contact terms prohibit storing protected health information outside the US, for instance. Providers need to understand whether remote worker services are within scope of such agreements, and what needs to be done to comply.

Insurance Coverage. In the case of a security incident or data breach, a cyber insurance policy can be vitally important to a healthcare organization. Verifying coverage applies to a new remote work arrangement is better performed before the incident than in the middle of the investigation.

The “Remote Work” policy. Providers need to think about the environment healthcare workers will be working in when remote, and what policies are necessary and prudent. Clearly, secure connections are needed for workers to be able to access patient data, communicate with patients, and satisfy charting, reporting, billing, and other related obligations.

Questions about work location, access to systems, distractions, monitoring, and others require a careful look at the effectiveness of an organization’s remote work policy. Recall that protecting patient data is not limited to confidentiality and security, the integrity of medical data is vital. It goes without saying, however, that the issues here extend beyond data privacy and security to include employee relations, patient relations, efficiency, compliance with wage and hour laws, ease and effectiveness of management, and productivity to name a few.

Monitoring performance. A significant concern for managers of remote workers is the ability to manage – being able to train newer workers, coach more senior workers, and monitor performance, among other things. Again, technology can be helpful here, but can raise additional risks. Recording calls, tracking employee keystrokes on the system, capturing screenshots, and requirements for employees to remain on camera during work hours can all be effective monitoring tools. However, they can come with compliance requirements, significant legal risks, and employee relations challenges. Providers also need to consider who monitors the monitors. A task that often falls to the IT department, it can invite abuses even if the activity is well-intended.

Delivering healthcare remotely is an exciting development and promises to deliver enormous benefits, particularly for a national and dynamic healthcare system facing staffing shortages and other systemic challenges. However, care needs to be taken when implementing to help minimize legal and compliance risks, and to maintain a high level of care, patient satisfaction, accessibility, and employee relations.


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