HHS Needs to Ensure Telehealth Patients and Providers Understand Privacy Risks

The federal government needs to take stronger action in informing Medicare patients about their rights to privacy and security surrounding their medical and health data following the dramatic surge in telehealth uses during the COVID-19 pandemic, according to a new oversight report.

The Government Accountability Office examined the telehealth care used by the Health and Human Services Department for Medicare patients during the height of the COVID-19 pandemic. Due to a sudden influx in need, HHS officials temporarily waived select Medicare restrictions on telehealth. 

While the need for in-home, remote medical care was critical during the onset of the pandemic, the GAO reports that stricter procedures are needed to enforce telehealth providers’ disclosure of privacy and security risks associated with virtual treatment. 

The HHS Office of Civil Rights “encouraged covered providers to notify patients of potential privacy and security risks. However, it did not advise providers of specific language to use or give direction to help them explain these risks to their patients,” the report said. “Providing such information to providers could help ensure that patients understand potential effects on their protected health information in light of the privacy and security risks associated with telehealth technology.”

The GAO summary highlights the lack of actionable data describing the number of video telehealth visits made to Medicare patients throughout the latter part of 2020. Researchers link this to a lack of accurate billing codes insurance companies use to track telehealth and virtual appointments. Thus, the agency’s recommendations primarily ask the administrator of the Centers for Medicare and Medicaid Services to adjust their service codes to give health care providers more billing options. 

GAO authors also recommended that HHS’s OCR provide supplementary education and outreach to help providers convey the privacy and security risks associated with patients using virtual health care services. 

“With clear information, patients could better weigh the risks to their personal information and understand steps they can take to safeguard their PHI,” or personal health information, the report notes. 

While the pandemic telehealth waiver issued by HHS in 2020 allowed for leniency with virtual health care appointments, the agency reserved the right to investigate potential Health Insurance Portability and Accountability Act violations. The GAO documents several instances of reported health care information privacy violations, including five separate complaints from patients that a provider’s telehealth platform did not meet HIPAA requirements. 

Another 37 complaints documented possible security violations, namely third party presences during appointments and instances of providers’ sharing PHI without patient consent. 

The GAO broadly recommends clearer language and communication between telehealth vendor privacy policies and HIPAA compliance for patients to understand prior to using a telehealth service.

“The agency did not advise providers of specific language to use or give direction to (1) help them explain to patients the potential privacy and security risks of these telehealth platforms, and (2) ensure that patients understand potential uses of their PHI and the effects of this use,” the report noted. 

While HHS did not comment on the GAO’s recommendations toward the CMS, it did concur with the agency’s suggestion that the OCR provide clearer information about patient security and privacy policies. 

“HHS notes that it plans to develop additional guidance for providers regarding telehealth and will include information to help providers explain privacy and security risks to individuals in plain language,” the report concludes. 

The burgeoning digital ecosystem encompassing digitized health care data is referred to as the Internet of Bodies, and is characterized by the storage and interoperability of individuals’ personal health data. 

Leslie Gordon, the acting director for the GAO’s Health Care division, said that in addition to providing clearer disclosures on privacy and security risks associated with telehealth platforms, the GAO also advises the OCR issues more education and assistance to health care providers to better communicate with patients “in plain language.” 

“While the agency’s actions to address this recommendation won’t protect patients against risks, it will at a minimum, help inform patients of the privacy and security risks,” Gordon told Nextgov. 

The GAO issued a similar report recently that advocates for the modernization of federal government public health data collection and storage.