Telehealth Services Between Health Care Providers and the Public During the COVID-19 Public Health Emergency

Posted by donna@healthlawcenterplc.com in Mar, 2020

The Office for Civil Rights (OCR) at the Department of Health and Human Services has issued a telehealth Notice during this COVID-19 public health emergency. During the current public health emergency OCR will exercise its enforcement discretion and will not impose penalties for noncompliance with HIPAA Rules if healthcare providers provide telehealth services through remote communication technologies. It should be clear that the relaxation of enforcement is only during this public health emergency. Healthcare providers should monitor the situation to determine when such public health emergency is no longer in effect.

OCR will allow healthcare providers to use audio or video communication technology to provide telehealth services if such technology is a non-public facing remote communication product. OCR has specifically stated that Facebook Live, Twitch, TikTok and similar video communication applications are public facing and should not be used by healthcare providers.

While OCR and The Health Law Center do not endorse or certify any particular application that allows for video chats, in its Notice, OCR has cited some applications which may be used without risk of penalty during this public health emergency, such as Apple FaceTime, Facebook Messenger video chat, Google Hangouts video and Skype. OCR’s Notice also included names of vendors that are HIPAA-compliant and who will enter into a HIPAA business associate agreement. These vendors include, Skype for Business, Updox, VSee, Zoom for Healthcare, Doxy.me, and Google G Suite Hangouts Meet.

As a word of caution, healthcare providers should notify patients/clients that even though these video and audio applications have been determined by OCR to be HIPAA compliant, there may still be privacy risks. The OCR encourages healthcare providers to avail themselves of all available encryption and privacy modes when using such applications.

The Health Law Center has received many questions about this telehealth Notice. Here are just a few of those questions with some guidance.

Will insurance companies pay for telehealth services based on the relaxation of enforcement by OCR? It is not clear. The best step to take is to review your provider agreement with the insurance company and call each insurance plan you are paneled with and ask if you will be reimbursed for telehealth services.

If I didn’t provide telehealth services before, can I provide them now during this public health emergency? Before offering telehealth services for the first time, regardless of the public health emergency, make sure you have addressed this in your Notice of Privacy Practices (NPP). Your NPP gives patients/clients information on how you will use and disclosure their protected health information (PHI). If your NPP does not address telehealth services, amend your NPP.

How do I ensure that I maintain the confidentiality and privacy of my patients/clients? We are in unprecedented times and there are more questions than answers. It is best to explain to patients/clients that you are following the OCR’s Notice guidelines but you cannot give guarantees. Explain what your telehealth application involves and obtain your patients/clients’ consent to use telehealth communication. A form to obtain your patients/clients informed consent related to telehealth communication should be used.

How does OCR’s Notice impact Michigan’s telehealth laws? Since these are unprecedented circumstances and this is a fluid situation, and each healthcare provider’s circumstances differ, The Health Law Center cannot give specific direction. Each situation would need to be reviewed on a case-by-case basis. Given that, The Health Law Center urges healthcare providers to follow the guidance of OCR’s Notice, have candid discussions with your patients/clients regarding your telehealth communication application and the confidentiality of their information, review your NPP to determine if it allows you to provide telehealth services, and obtain informed consent from your patients/clients to engage in telehealth communication.

During this public health emergency, if you have any questions regarding telehealth communications, contact The Health Law Center for legal guidance.

For More Information Go to: The OCR webpage