May 17, 2023
The public health emergency declaration, which loosened rules related to telemedicine, has expired. The question is how, if at all, telemedicine will be impacted.
On Jan. 30, 2023, the Biden Administration announced its intent to end the national emergency and public health emergency declarations related to the COVID-19 pandemic on May 11, 2023, Paul F. Schmeltzer and John F. Howard report on the website of Clark Hill law firm. Thereafter on April 11, 2023, the Department of Health and Human Services Office for Civil Rights (OCR) announced the expiration of its notifications of enforcement discretion related to compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), due to the end of the COVID-19 public health emergency (PHE).
On March 17, 2020, OCR issued a notification announcing that it would not impose penalties for noncompliance with HIPAA’s regulatory requirements, provided that the noncompliance was in connection with the good-faith provision of telemedicine services using nonpublic-facing remote communication technology.
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“The OCR had recognized that some of the remote communication technologies used by providers during the PHE might not be fully HIPAA compliant. OCR noted that providers can use nonpublic-facing audio and video technologies such as Zoom, Facetime, Facebook Messenger video chat, Google Hangouts video, or Skype, but providers should not use public-facing technologies such as Facebook Live, Twitch or TikTok, as these are not private and are widely shared by users,” Schmeltzer and Howard write.
“What this means for covered entities is that OCR expects that providers will use this transition period to choose and implement HIPAA-compliant telehealth technology for the continued provision of telehealth services. Effectively, this means that providers will not be permitted to use standard consumer versions of audio and video technologies such as Zoom and Skype to provide telehealth. Instead, providers will need to transition to technology that complies with HIPAA security and privacy standards. Covered entities must also ensure that they have Business Associate Agreements in place with audio and video technologies vendors they use to provide telehealth services to patients. OCR has provided a 90 calendar-day transition period for this Notification of Enforcement where they will continue to exercise enforcement discretion and not impose any penalties. This period will end on Aug. 9, 2023.”
