Kentucky Medicaid Further Expands Telehealth Coverage

By Lindsay K. Scott

Following expansion by the Department of Human Health Services’ Office for Civil Rights (“OCR”) and the Centers for Medicare and Medicaid Services (“CMS”) of federal telehealth services and relaxation of certain requirements, Kentucky Medicaid is following suit.

On March 17, 2020, the Centers for Medicare and Medicaid Services published guidance expanding the use of telehealth and relaxing restrictions on its use. The Office for Civil Rights, the agency responsible for enforcement of HIPAA, followed up with guidance making it clear that it will not enforce penalties for the use of technology that is not HIPAA compliant, when used in the good faith provision of telehealth services:

Under this Notice, covered health care providers may use popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, to provide telehealth without risk that OCR might seek to impose a penalty for noncompliance with the HIPAA Rules related to the good faith provision of telehealth during the COVID-19 nationwide public health emergency.  Providers are encouraged to notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications.

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HHS Office for Civil Rights Issues Telehealth HIPAA Guidance during COVID-19 Emergency

On March 17, 2020, the Office for Civil Rights (“OCR”), the agency within the Department of the United States Health & Human Services (“HHS”) responsible for enforcement of HIPAA, issued the following guidance: “Notification of Enforcement Discretion for telehealth remote communications during the COVID-19 nationwide public health emergency.” Pursuant to Telehealth regulatory waivers issued by the HHS Centers for Medicare & Medicaid Services (“CMS”) effective during the COVID-19 Public Health Emergency (“PHE”), providers can use telehealth at any location including in a patient’s home. As more fully explained in its Telehealth Fact Sheet March 17, 2020, HHS stated:

“The provider must use an interactive audio and video telecommunications system that permits real-time communication between the distant site and the patient at home. …  It is imperative during this public health emergency that patients avoid travel, when possible, to physicians’ offices, clinics, hospitals, or other health care facilities where they could risk their own or others’ exposure to further illness.” Continue reading

OCR’s 2019 Right of Access Initiative Bears First Fruit

Hospital Agrees to Pay $85,000 for Failure to Provide Patient Timely Access to Records

by Margaret Young Levi and Kathie McDonald-McClure

On September 9, 2019, the Office for Civil Rights (OCR) announced its first settlement under its “Right of Access Initiative.” Without admitting any wrongdoing, a hospital has agreed to pay $85,000 to the United States Department of Health & Human Services (HHS) as a result of a 10-month delay in providing access to protected health information (PHI). Importantly, the Health Insurance Portability and Accountability Act (HIPAA) requires covered entities to “act on” requests for access within 30 days of a request. The hospital also entered into a Corrective Action Plan (CAP) that required the hospital to implement, and train staff on, policies and procedures to ensure individuals have timely access to their requested PHI.

What led to the settlement? The patient raised the issue of untimely access in a complaint to the OCR on August 14, 2018. The patient alleged that on October 18, 2017, she requested her unborn child’s fetal heart monitor records from Bayfront Health – St. Petersburg (Hospital), a Florida hospital.  At the time of her OCR complaint, nine months had passed without receiving any records.  The reason given to the patient by the Hospital for not producing the records was that it could not find them. Continue reading

CMS Proposed Rule on Hospital EHR “Electronic Patient Event Notifications”

By Kathie McDonald-McClure and Margaret Young Levi

Doctor Speaking with Patient

Summary: CMS proposes new Medicare Conditions of Participation (CoPs) for hospitals that will require the hospital EHR to send electronic event notifications to post-acute care providers when a patient has been admitted, discharged, or transferred.  What must hospitals do, and how much time is needed, to operationalize the new CoPs, considering a process will need to be developed that identifies providers who should and can receive these event notices? What will be required, and how much time is needed, to reconfigure EHRs to send the notifications and demonstrate compliance with the multiple facets of the CoP?  Will PAC providers be obligated to operationalize the receipt and use of these notifications under the IMPACT Act?  CMS is seeking stakeholder input on its proposal, including a reasonable time frame for implementation. Comments are due June 3, 2019.* Continue reading

Healthcare Privacy Practices Notice Must Include Nondiscrimination Notice

By Margaret Young Levi and Kathie McDonald-McClureprivacy policy

Among the many mandates of the Affordable Care Act (ACA) (a/k/a “Obama Care”) still in force today is Section 1557. Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities. The U.S. Department of Health & Human Services (HHS) Office for Civil Rights (OCR) is the agency vested with responsibility for implementing and enforcing Section 1557. On May 16, 2016, OCR issued a Final Rule that requires entities covered by the ACA to notify beneficiaries, enrollees, applicants, or members of the public of Section 1557’s nondiscrimination prohibitions. This notice must be included in the entity’s “significant” publications and communications.

You might ask, “Why am I reading about this on a legal blog about privacy and security?”  This is because OCR determined that the Notice of Privacy Practices, which healthcare providers and health plans issue to patients and plan members, is a “significant” publication or communication. As a result, health care providers and health plans that are subject to both Section 1557 and the Privacy Rule under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) must add the Section 1557 nondiscrimination notices and taglines to their Notice of Privacy Practices. Health plans should add such notices and taglines to their Summary of Benefits and Coverage as well.

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