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.
Wyatt HiTech Law Blog 