On Monday afternoon, the Office for Civil Rights (OCR) at the Department of Health and Human Services (HHS) issued broad guidance and announced that it will exercise enforcement discretion for telehealth remote communications during the COVID-19 public-health emergency ("COVID-19 emergency").
A healthcare provider that wants to use audio or video technology to offer telehealth to patients during the COVID-19 emergency can use any non-public facing remote communication product to communicate with patients. The OCR specifically indicated that it will not impose penalties for noncompliance with regulatory requirements under the Health Insurance Portability and Accountability Act (HIPAA) for providers acting in good faith while servicing patients via telehealth during the COVID-19 emergency.
Under the applicable HIPAA regulations, healthcare providers are required to enter into a Business Associate Agreement (BAA) with third parties that deliver services to the provider and have access to patients’ protected health information (PHI). While some remote communication platforms are secure, the developers have historically not agreed to enter into BAAs with healthcare providers, which means they have not been HIPAA compliant and were unavailable to utilize for telehealth purposes. Additionally, healthcare providers were not able to rely on the conduit exception under HIPAA because certain platform developers would not indicate whether information was stored on their servers or whether it simply passed through and was not able to be retrieved and viewed.
This emergency guidance is broad enough to allow healthcare providers to utilize any private remote device to communicate with patients. The OCR specifically cited Apple FaceTime, Facebook Messenger, Google Hangouts and Skype as examples, but there is no limitation on what platforms a provider can use; it must simply be a private-facing remote communication device (e.g., not something that is broadcast publicly like Facebook Live).
The emergency guidance also indicates that the allowable services are not limited to COVID-19 screening or treatment. The OCR specifically noted that a healthcare provider may offer remote services to treat or assess any medical condition during the COVID-19 emergency. The OCR’s intent is to allow providers the latitude to assess a greater number of patients while limiting potential infection and exposure that would continue if the applicable HIPAA regulations were not waived. This will also help ease the burden on hospitals and healthcare entities that have limited physical space to screen and assess patients for all conditions during the COVID-19 emergency.
When the President declares a national emergency, and the HHS Secretary declares a public-health emergency, the Secretary may waive or modify certain Medicare, Medicaid and Children’s Health Insurance Program requirements. The Center for Medicare and Medicaid Services has expanded Medicare’s telehealth benefits under the waiver authority. Before this announcement, Medicare only reimbursed clinicians for telehealth services in specific circumstances. Providers will be able to begin billing immediately and will be paid under the Physician Fee Schedule at the same rate for in-person services for the duration of the COVID-19 emergency. States can request waivers through CMS regarding administrative requirements related to Medicaid and telehealth. At this point, Florida is the only state that has requested a waiver. Each commercial payer has its own policies regarding telehealth services and reimbursement, and each must be individually reviewed to make a determination regarding covered services. Some states have started taking action to force commercial payers to cover telehealth services during the COVID-19 emergency. Massachusetts Governor, Charlie Baker, for example, has ordered commercial payers to cover in-network services for services related to COVID-19. It is likely that other states will follow suit.
If you have questions on this guidance or any other healthcare legal issue, please contact Jeffrey Segal
or a member of Warner’s Health Law Practice Group