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HIPAA enforcement discretion during the COVID-19 public health emergency

Overview 

To prevent the spread of COVID-19, also known as the coronavirus, patients who may have been exposed or individuals who display symptoms of COVID-19 are told to remain at home and self-isolate. This is a critical and necessary precaution to stop the spread to people who are at most risk, seniors and people with disabilities. This provides a challenge for healthcare providers who may need to utilize other means of communication to provide services for patients who choose not to visit medical practices. 

 

The OCR Announces:

During the COVID-19 outbreak, healthcare providers may communicate with patients through remote communication technologies to provide services. Keep in mind, they are still subjected to HIPAA rules and some of these technologies aren’t completely covered or fully comply with HIPAA rules requirements. 

However, on March 17, 2020, the HHS’ Office for Civil Rights announced it will be taking a more relaxed stance on HIPAA regulations concerning Telehealth services. “OCR will exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of Telehealth during the COVID-19 nationwide public health emergency. This notification is effective immediately,” according to its Notification of Enforcement Discretion for Telehealth remote communication on the HHS website.  

The OCR will allow healthcare providers the opportunity to utilize any “non-public remote facing communication product that is available to communicate with patients in connection with the good faith provisions with telehealth”.  

Under normal circumstances, the OCR does not endorse these products but have suggested healthcare providers use the following: 

  •     Apple Facetime
  •     FB Messenger video chat 
  •     Google Hangouts video
  •     Skype

Facebook Live, Twitch, and TikTok are not permitted because they are public-facing. Keep in mind, just because enforcements have been relaxed, healthcare providers must continue taking measures to safeguard and protect patient information. 

Lastly, the OCR reminds healthcare providers that they can obtain better protection if they sign a business associate agreement and use HIPAA-compliant video platforms such as TigerConnect, Skype for Business, Zoom for Healthcare, Updox, and Vsee.

If you have any questions regarding any of the above information, feel free to reach out to our team at Birzon & Associates. You can contact us today at 631-265-6300, or by visiting our website www.bsb-lawyers.com.

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