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OCR to Exercise Discretion for Telehealth Providers Practicing During the COVID-19 Pandemic

The Office of Civil Rights (OCR) recently made an announcement that will come as welcome news for healthcare providers struggling to adapt to the impact of the COVID-19 while remaining in compliance with the law.

To adapt to the challenges of life under quarantine, many providers have increasingly turned to the practice of telehealth medicine to continue to see patients. Video conference technologies have become increasingly popular as a result. With these new technologies come new risks, however, and healthcare providers should be careful to make sure they rely on technologies that are both safe and secure; nor should they excuse themselves from having a HIPAA-compliant business associate agreement (BAA) in place with video conference vendors.

Fortunately, OCR recently announced it will exercise enforcement discretion and will not impose penalties for noncompliance with HIPAA Rules so long as the misstep can be connected with the “good faith provision of telehealth” during this nationwide pandemic.

OCR provided the following illustration of its enforcement discretion in its March 30, 2020 announcement:

For example, a covered health care provider in the exercise of their professional judgement may request to examine a patient exhibiting COVID- 19 symptoms, using a video chat application connecting the provider’s or patient’s phone or desktop computer in order to assess a greater number of patients while limiting the risk of infection of other persons who would be exposed from an in-person consultation.  Likewise, a covered health care provider may provide similar telehealth services in the exercise of their professional judgment to assess or treat any other medical condition, even if not related to COVID-19, such as a sprained ankle, dental consultation or psychological evaluation, or other conditions. 

Providers should remain cautious, however. There is no definition nor precedent for the “good faith provision of telehealth” during today’s global public health crisis. OCR also continues to announce new or modified regulations on a daily basis.

Healthcare providers who are uncertain if their practice of telehealth may run afoul of the law and regulatory agencies are encouraged to seek the advice of an attorney.

Contact Caplan & Earnest With Questions

If you have questions about laws or regulations governing telehealth, please contact Meghan Pound or Sheryl Bridges in Caplan & Earnest’s Health Law practice. Our attorneys continue to closely follow these developments, as well as many others related to changing laws, regulations and rules relating to the COVID-19 pandemic.

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