Telehealth Communications During Pandemic: OCR to Exercise Enforcement Discretion

Health care providers seeking to use popular remote communications technologies with patients during the COVID-19 national emergency can rest assured that they will not be the target of an enforcement action by the Office for Civil Rights (OCR) at the Department of Health and Human Services (HHS).

During the COVID-19 pandemic, OCR will not impose penalties for any potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy or Security Rules by covered health care providers using common communications technologies in good faith for any telehealth treatment or diagnostic purpose, and not only those services related to COVID-19.

Covered health care providers may use “any non-public facing remote communication product that is available to communicate with patients.” OCR encourages health care providers using such apps to use all available encryption and privacy modes and to notify patients of potential privacy risks.

OCR mentioned the following apps as permissible for telehealth services:

• Apple FaceTime
• Facebook Messenger video chat
• Google Hangouts video
• Skype

In contrast, OCR stated that the following apps should not be used by health care providers in the provision of telehealth services:

• Facebook Live
• Twitch
• TikTok
• Other public-facing video communication applications

For health care providers seeking additional privacy protections, OCR lists the following vendors, which represent that they provide HIPAA-compliant video communication products and will enter into a HIPAA business associate agreement (BAA) with providers:

• Skype for Business / Microsoft Teams
• Updox
• VSee
• Zoom for Healthcare
• Doxy.me
• Google G Suite Hangouts Meet

OCR will not, however, impose penalties against health care providers for the lack of a BAA with video communication vendors or any other noncompliance with the HIPAA Rules that relates to the good faith provision of telehealth services during the COVID-19 nationwide public health emergency. For the full OCR Notice, please click here.