COVID-19 TELEHEALTH UPDATE
COVID-19 Response Update: Understanding New Telehealth Flexibility
Through April 30, 2020
On March 17, 2020, in response to HHS’ subsequent waiver of certain conditions for payment of telehealth, the HHS Office for Civil Rights (OCR) announced its enforcement discretion to promote greater flexibility with respect to HIPAA privacy and security rule (HIPAA Rules) compliance in telehealth.
What is permitted?
A healthcare provider may use any non-public-facing remote communication product to communicate with patients (e.g., FaceTime, Facebook Messenger video chat, Google Hangouts and Skype are all explicitly permitted). Providers are still encouraged to advise patients of the potential privacy risks with using such interfaces, and they should use all encryption and privacy modes, to the extent available.
What is not permitted?
Public-facing video applications are not permitted (e.g., Facebook Live, Twitch and Tik Tok are expressly excluded).
- OCR’s exercise of enforcement discretion will extend to telehealth provided for any reason—not just treatment for COVID-19.
Additionally, as of March 16, 2020, HHS and the DEA, in accordance with the public health emergency exception, will allow Schedule II-V controlled substances to be prescribed to patients, even when an in-person medical evaluation has not been conducted, if the following conditions are met:
- The prescription is for a legitimate medical purpose by a practitioner acting in the usual course of their professional practice
- The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system; and
- The practitioner is acting in accordance with applicable Federal and State laws.