Telehealth Privacy

Telehealth Privacy Compliance

Overview

Telehealth (also termed telemedicine, virtual care, or remote patient monitoring) involves the delivery of healthcare services through electronic communications technologies when the patient and provider are in different locations. The rapid expansion of telehealth — accelerated during the COVID-19 public health emergency — created a complex regulatory environment where HIPAA, state privacy laws, telecommunications regulations, and professional licensing requirements converge. Privacy compliance for telehealth requires addressing the security of the communication platform, the privacy of the encounter, state-specific consent and recording requirements, cross-state practice considerations, and the obligations of technology vendors as business associates.

HIPAA Compliance for Telehealth

Core HIPAA Requirements

Telehealth encounters involve the creation, transmission, and storage of ePHI and are fully subject to HIPAA:

Platform Security Requirements

Asclepius Health Network evaluates telehealth platforms against these Security Rule requirements:

Access Controls (§164.312(a)):

• Unique user identification for all providers and patients
• Multi-factor authentication for provider access
• Patient authentication through verified identity (DOB verification, registered email/phone, patient portal credentials)
• Session-level access controls — each encounter creates a separate, access-controlled session
• Automatic session termination after provider disconnect or 5-minute inactivity

Audit Controls (§164.312(b)):

• Logging of all session events: initiation, connection, disconnection, duration, participants
• Recording access logs (who accessed any stored recordings)
• Chat/messaging logs maintained as part of the medical record
• Logs retained for minimum 6 years

Transmission Security (§164.312(e)):

• End-to-end encryption for video, audio, and data channels (minimum AES-128; Asclepius requires AES-256)
• TLS 1.2 or higher for signaling and data transport
• No unencrypted fallback — session fails rather than downgrades
• SRTP (Secure Real-time Transport Protocol) for media streams

Integrity Controls (§164.312(c)):

• Tamper-evident session metadata
• Digital signatures on stored encounter records
• Integrity verification on transmitted prescriptions and orders

Platforms Requiring BAA

OCR Enforcement Discretion During Public Health Emergency

On March 17, 2020, OCR issued a Notification of Enforcement Discretion for Telehealth Remote Communications (85 FR 22024), stating that during the COVID-19 public health emergency, OCR would exercise enforcement discretion and would not impose penalties for noncompliance with HIPAA related to the good-faith provision of telehealth using non-public-facing remote communication technologies:

What was permitted during enforcement discretion:

• Use of non-public-facing video platforms (Apple FaceTime, Facebook Messenger video, Google Hangouts video, Zoom, Skype) without a BAA
• Covered entities were expected to use encryption and privacy settings available on these platforms
• OCR encouraged providers to notify patients of potential privacy risks

What was NOT permitted even during enforcement discretion:

• Use of public-facing platforms (Facebook Live, Twitch, TikTok) where communications are open to the public
• Abandonment of all privacy protections (providers still had to use reasonable precautions)

Post-PHE Status: The COVID-19 PHE ended on May 11, 2023. OCR enforcement discretion for telehealth formally expired on August 9, 2023. All telehealth must now be conducted on HIPAA-compliant platforms with BAAs in place.

Asclepius Health Network: Asclepius transitioned all telehealth to BAA-covered platforms (Epic MyChart Video Visit as primary; Zoom for Healthcare as backup) prior to the enforcement discretion expiration. All consumer-grade platform use for clinical telehealth was discontinued.

State Licensing Requirements

Cross-State Telehealth Practice

Healthcare providers are generally licensed by individual states. Providing telehealth services to a patient in a state where the provider is not licensed may violate that state's medical practice act.

Key Licensing Models:

Privacy Implication: The state where the patient is physically located at the time of the telehealth encounter generally controls which state's privacy laws apply. This means the provider must comply with that state's specific privacy, consent, and recording requirements even if the provider is located in a different state.

Asclepius Health Network: Asclepius providers are licensed in the 4 states where Asclepius operates. For telehealth, the EHR prompts the provider to confirm the patient's physical location at the start of each encounter. The system applies location-specific consent requirements and recording notices based on the patient's state.

Recording Consent Requirements

HIPAA and Recording

HIPAA does not specifically address recording of telehealth encounters, but recordings containing ePHI are subject to all HIPAA protections. Recordings become part of or associated with the medical record and must be:

• Stored securely with encryption
• Subject to access controls
• Retained per the entity's record retention policy
• Made available to patients under the right of access (§164.524) if part of the designated record set

State Recording Consent Laws

State wiretapping and eavesdropping laws impose consent requirements on the recording of communications:

Two-party consent states require particular attention: A provider in a one-party state conducting telehealth with a patient in a two-party state must obtain the patient's consent before recording. The more restrictive state law controls.

Asclepius Health Network Recording Policy:

• All telehealth encounters may be recorded for quality assurance and medical record purposes
• Prior to recording, the platform displays a notice and requires patient acknowledgment: "This telehealth visit may be recorded for quality assurance and medical record purposes. Your provider will also be taking notes during the visit. Do you consent to the recording of this visit?"
• For patients in two-party consent states, recording does not proceed without affirmative consent
• For patients who decline recording, the encounter proceeds without recording; the provider documents clinical notes manually
• Recordings are encrypted and stored in the EHR document management system; access is restricted to the care team and authorized quality reviewers