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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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.