Beware this Therapy falls outside of the Privacy Rule mandates
At online therapy apps, employees may be reading your sessions
We know that tech companies cooperated with a secret government surveillance program, that Uber employees have searched for specific passengers’ travel information, and that information is frequently stolen and leaked online (including potentially embarrassing personal details). But somehow, still, hundreds of thousands of people are creating transcripts of their deepest secrets and inner turmoil through online therapy apps.
Unsurprisingly, potential privacy issues have emerged.
In a detailed report that exposes ethical gray areas and possible worker misclassification issues at Talkspace—which matches clients with therapists for unlimited text-, video-, or audio-message exchanges for $32 per week—Cat Ferguson, a reporter at the Verge, also found a lack of clarity about how company employees access discussions between therapists and clients.
Talkspace, which on its website claims to have 300,000 active users, reportedly sent emails reprimanding several therapists who told their clients that they would stop working for the service and offered them the option to switch to a new service. “As for how Talkspace found out about the therapists telling clients they’d leave,” Ferguson writes, “it is not clear who can read patient conversations or when.” Ferguson reports that the company updated its terms of service in October to mention that Talkspace employees may read sessions during certain circumstances, including “quality assurance.”
Health privacy laws require health providers to put procedures in place such as encryption to limit who can view and access individually identifiable health information. They do allow health operators to access health information without notice for reasons including “quality assessment and improvement activities, including case management and care coordination” and “competency assurance activities,” but psychotherapy notes are treated specially under the laws. According to the Department of Health and Human Services website, “with few exceptions, the Privacy Rule requires a covered entity to obtain a patient’s authorization prior to a disclosure of psychotherapy notes for any reason.”
But apps like Talkspace don’t necessarily fall under these laws, because they are neither hospitals nor insurance companies, according to Jason Wang, the CEO and founder of a HIPAA-compliant database called TrueVault that stores patient data for health and fitness apps. “Talkspace merely connects their users with independent therapists, and provides the necessary apps and tools for the two sides to communicate,” he says. “This definitely puts Talkspace outside of the Privacy Rule mandates.”
Breakthrough, an online therapy service offered by virtual care provider MDlive, sets up live video sessions with clients rather than using Talkspace’s system of asynchronous message exchanges. It notes in its terms of service that counseling sessions “are not recorded,” though messages between clients and therapists (which the service’s website encourages patients to use when describing their problems with prospective therapists), “may be monitored for quality assurance, training and other purposes.”
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