On March 17, 2020, in light of the COVID-19 nationwide public health emergency, the Office of Civil Rights (OCR) announced that it will refrain from imposing penalties for noncompliance with HIPAA regulations in the context of good faith provision of telehealth. This significant Notification of Enforcement discretion allows health care providers to use“non-public facing” remote communications, such as audio or video communication technology, to provide telehealth to patients during this emergency environment. OCR clarified that the exercise of discretion applies to telehealth provided for any reason, not just for diagnosis or treatment of COVID-19. Providers may use video chat applications via phone or desktop computer, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype. However, “public facing” applications such as “Facebook Live,Twitch, TikTok, and similar video communication applications . . . should not be used in the provision of telehealth.”
OCR encouraged providers to notify patients that these third-party applications potentially introduce privacy risks, and that they should enable all available encryption and privacy modes when using these applications. Although OCR will not impose penalties against providers for failing to execute a Business Associate Agreement (BAA) with the video communication vendors, OCR suggested that providers should nevertheless seek to provide telehealth services through HIPAA-compliant technology vendors that will enter into a BAA.
For more information about the telehealth Exercise of Discretion, see: https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html.
Note that this is just one example of the discretion federal agencies may exercise in the context of a national emergency. See also: https://www.phe.gov/Preparedness/legal/Pages/phedeclaration.aspx for more information about regulatory discretion in the context of the Department of Health and Human Service’s recent Public Health Emergency Declaration.
Beckage attorneys, including our seasoned health care attorneys, are at the ready to help your organization navigate the use of telehealth services during these unprecedented times. Our experienced team understands the nuances associated with the intersection of healthcare, law and technology and can provide practical know-how related to the provision of telehealth services.
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