Is Facebook Messenger HIPAA Compliant?

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Is Facebook Messenger HIPAA compliant? Is it OK to use the messaging service to send protected health information without violating HIPAA Rules?

Many doctors and nurses communicate using chat platforms, but is it acceptable to use the platforms for sending PHI? One of the most popular chat platforms is Facebook Messenger. To help clear up confusion we will assess whether Facebook Messenger is HIPAA compliant and if the platform can be used to send PHI.

In order to use any service to send PHI, it must incorporate security controls to ensure information cannot be intercepted in transit. In sort, messages need to be encrypted. Many chat platforms, including Facebook Messenger, do encrypt data in transit, so this aspect of HIPAA is satisfied. However, with Facebook Messenger, encryption is optional and users have to opt in. Provided that setting has been activated, only the sender and the receiver will be able to view the messages. However, there is more to HIPAA compliance than simply encrypting data in transit.

There must be access and authentication controls to ensure only authorized individuals can access the program. Facebook Messenger could be accessed by unauthorized individuals if a phone was stolen, so it would be necessary for the device to have additional security controls to ensure apps such as Facebook Messenger could not be accessed in the event of loss or theft. Facebook Messenger users don’t have to login each time to view messages on the app.

HIPAA-covered entities must ensure there is an audit trail. Any PHI sent through a chat messaging platform would need to be retained and hardware, software or procedural mechanisms would be required to ensure any activity involving PHI could be examined. It would be difficult to maintain an audit trail on Facebook Messenger and there are also no controls to prevent messages from being deleted by users.

Is a Business Associate Agreement Required?

The HIPAA Conduit Exception allows HIPAA-covered entities to send information via certain services without the need for a business associate agreement. For example, it is not necessary to enter into a BAA with an Internet Service Provider (ISP) or the U.S. Postal Service. Those entities only act as conduits.

However, cloud service providers are not covered by that exception. HHS points this out on its website, saying “CSPs that provide cloud services to a covered entity or business associate that involve creating, receiving, or maintaining (e.g., to process and/or store) electronic protected health information (ePHI) meet the definition of a business associate, even if the CSP cannot view the ePHI because it is encrypted and the CSP does not have the decryption key.”

Facebook would therefore need to sign a BAA with a HIPAA-covered entity before Facebook Messenger could be used to communicate PHI, and at the time of writing, Facebook is not prepared to sign a BAA for its Messenger service.

How About Workplace by Facebook?

Workplace by Facebook is a messaging service that can be used by businesses to communicate internally. Is Workplace by Facebook HIPAA compliant? The Workplace Enterprise Agreement states under its prohibited data section, “You agree not to submit to Workplace any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations (“Health Information”) and acknowledge that Facebook is not a Business Associate or subcontractor (as those terms are defined in HIPAA) and that Workplace is not HIPAA compliant.”

Is Facebook Messenger HIPAA Compliant?

Is Facebook Messenger HIPAA compliant? Without a BAA, and without appropriate audit and access controls, we do not believe Facebook Messenger is HIPAA compliant. If you want to use a chat program for communicating PHI, we suggest you use a HIPAA-compliant messaging service that has been developed specifically for the healthcare industry. TigerText for example. These secure healthcare text messaging solutions incorporate all the necessary controls to ensure PHI can be sent securely, and include access controls, audit controls, and full end-to-end encryption.

Author: HIPAA Journal

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