New Jersey mental health professionals should be aware of some recently announced guidance from the Office for Civil Rights (OCR) at the US Department of Health and Human Services (HHS) on the provision of telehealth during the COVID-19 national public health emergency.
OCR has announced that it is waiving penalties against covered health care providers for the good faith provision of telehealth using “non-public facing” audio or video communication products during this emergency. This applies to telehealth provided for any reason, not just services related to the diagnosis and treatment of health conditions related to COVID-19.
The OCR’s announcement specifically identifies popular video chat applications like Apple FaceTime, Facebook Messenger video chat, Google Hangouts video and Skype as examples of means to provide telehealth without risk that OCR might seek to impose a penalty for noncompliance with the HIPAA Rules. The announcement encourages health care providers to notify patients or the privacy risks use of these applications entail, and notes that providers should enable all available encryption and privacy modes when using such applications.
Of equal importance, the announcement identifies several examples of the type of “public facing” video communication applications which should not be used in the provision of telehealth by covered health care providers: Facebook Live, Twitch and TikTok. It would appear from the Notice that the use of such public facing applications by a provider would not be considered “good faith” use and the waiver of HIPAA penalties would not apply.
The entirety of this announcement can be found at https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html.