Revision 2016. Since the article was published, Microsoft has started offering a Business Associate Agreement (BAA) for Office 365 Online of which Skype is a part. While online documentation is very unclear, Microsoft has indicated that Skype is covered under this BAA and thus use of Skype can be HIPAA compliant as long as you have Skype for Business and the signed BAA with Microsoft.
However, Skype lacks many controls and features that are actually required for an organization to be compliant, such as access auditing, backups, and breach reporting. This makes it unclear what the usefulness of its being covered under Microsoft s BAA really is. Microsoft is really just leaving it up to the Skype user to determine if the use of Skype is appropriate without taking any steps to ensure that use of Skype really could be compliant. Additionally, even though Skype is covered under Microsoft s BAA, the regular, free Skype used by most people is not covered. So, for example, a therapist should under no circumstances have a session with a patient, where that patient is using the regular free Skype program.
In conjunction with their use of LuxSci HIPAA-compliant email and web hosting services, many small health care practices often ask us about use of Skype and other video conferencing software for communicating with patients over the Internet.
Is it possible to be HIPAA compliant while using Skype for sending PHI via chat, voice, and/or video? Why? Everyone else is doing it shouldn t I thus be able to as well?
The short answer is no don t use Skype and there are other options available that offer this capability and allow you to be HIPAA compliant in the process. For the long answer, read on.
Some background on Skype itself
When considering if Skype can be used in a HIPAA compliant manner, there are many relevant items to consider:
- Encryption. Skype uses AES 265-bit encryption for securing the chat sessions and the voice and video phone calls. This level of encryption is beyond sufficient for encrypting the transmission of ePHI.
- Wire Tap. It is well known that many countries can wire tap skype communications so that they can record calls, videos, and chats. Changes that Microsoft has made to Skype make it easier for them to wire tap communications, in general and domestically. it is also well known that the NSA can wire tap Skype video calls.
- Business Associate Agreement. Skype (Microsoft) does not offer a BAA; however such an agreement with providers that you use for your ePHI is a requirement of HIPAA. Skype also does not state anywhere that its services can be used in a HIPAA compliant way.
- HIPAA Requirements. Use of Skype does not:
- Provide audit trails of usage
- Provide notifications in case of a breach
- Offer technical support and frequently dropped calls may cause problems for some organizations (e.g. in terms of emergency access, etc.)
- Provide archives of chats
- Provide administrative emergency access to previous chat histories
So, what does this mean?
These items taken together mean that:
- While Skype uses a strong level of encryption, the privacy of data sent via Skype is suspect
- Copies of calls, chats, and videos could be stored in unknown locations as a result of wire taps or other undisclosed recording by Skype, Microsoft, or government officials
- Skype does not claim any kind of HIPAA compliance and will not sign a required Business Associate Agreement and does not provide the tools to use Skype in a way that allows you to meet your own HIPAA compliance requirements (e.g. auditing).
Skype does argue that it does not need to be a vehicle that enables compliance just like your cell phone provider and the postal mail service are not. In fact, Skype provides better security than those other methods of transmitting PHI.
The problem is that this argument doesn t really hold water very well:
- Chat. PHI in Skype chat is just like an email message being sent from one party to another and will be cached and/or recorded by Skype. Use of Skype for ePHI over chat should be strictly avoided.
- Safeguards Principle. When we looked at HIPAA compliance for FAX. we saw that encryption and compliance comes down to the Safeguards principle of HIPAA: Individually identifiable health information should be protected with reasonable administrative, technical, and physical safeguards to ensure its confidentiality, integrity, and availability and to prevent unauthorized or inappropriate access, use, or disclosure.
The Safeguards principle means that if you can reasonably apply measures to ensure privacy, you should absolutely do so. With analog FAX, that is hard to do in a way that is generally compatible with everyone else. Since use of FAX may be required and there may be no really feasible way to send them securely, you might choose not to as long as you take all other reasonable measures to ensure privacy. This is a risk-benefit analysis you must perform and on which you must make your compliance business decisions.
So, what about Secure Chat?
For a secure, HIPAA-compliant chat solution, you must look to a vendor that offers this service and provides a Business Associate Agreement. Skype does not pass muster. Regular text messages (SMS and MMS) certainly do not .
One good solution is SecureChat by LuxSci, as it is HIPAA-compliant, simple, has easy-to-use iOS and Android apps, works in a web browser, and stores all of your chats and attachments permanently and without storage limits.
With video conferencing, the situation is somewhat different:
- You are generally not required to use it
- There are companies other than Skype that provide video conferencing in a way that allows you to remain HIPAA compliant
Since it is relatively easy to choose a Safeguard that allows you to be more fully compliant with HIPAA when video conferencing, it would be neglectful to instead use Skype for this purpose.
It does come down to the individual organization weighing the risks. If you choose to use Skype and accept the risk-benefit analysis, that is up to you, but you must be able to justify your decision in your internal HIPAA compliance reviews and be prepared to answer pointed questions from auditors, should the need arise.
What are the alternatives to Skype for Video Conferencing?
There are many organizations that offer video conferencing and which claim HIPAA compliance and/or which offer Business Associate Agreements. We would recommend choosing one that does offer a Business Associate Agreement as they are more likely to help you ensure your compliance, rather than just being a company that provides secure services .
LuxSci s SecureVideo is one option which provides a BAA and a service specifically designed to meet the HIPAA-compliance requirements for telehealth.
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