Type: Law Bulletins
Date: 03/19/2020

HHS Office of Civil Rights Waives HIPAA Penalties Under Good Faith Circumstances & Reminds Providers About Serving At-Risk Populations During COVID-19 Public Health Emergency

As an update to our previous COVID-19 bulletin on HHS-OCR guidance and in line with the firm’s general guidance on balancing privacy and public health needs, on March 17, 2020, the Department of Health and Human Services (HHS) Office of Civil Rights (OCR) issued a notice informing providers that it will exercise enforcement discretion and will waive penalties against providers for HIPAA violations for providers who serve patients through everyday communications technologies during the COVID-19 nationwide public health emergency. This waiver allows for good faith use of any non-public facing remote communication product that is available to communicate with patients for any telehealth treatment or diagnostic purpose. The services do not have to be directly related to COVID-19. Providers are still encouraged to use technology with vendors willing to enter into business associate agreements. However, OCR notes that penalties will not be imposed for lack of business associate agreement with these technology vendors.

And on March 16, 2020, HHS-OCR released a bulletin imparting policies health care providers should implement to best address the needs of at-risk populations during this emergency situation including medical care, transportation, maintaining independence for daily living, supervision and communication. OCR highlights that individuals with special needs or who are at risk in an emergency may be protected under the law from discrimination in certain emergency situations. In accordance with this guidance from the OCR, health care providers are encouraged to introduce new or emphasize current policies to ensure proper care and treatment reaches at-risk populations in their patient pool during the current COVID-19 public health emergency.

To further guide health care providers, the OCR shared practices that health care providers and covered entities should consider adopting, as circumstances and resources allow, to properly serve all segments of the community. The practices include:

  1. Employing qualified interpreter services to assist individuals with limited English proficiency and individuals who are deaf or hard of hearing.
  2. Making emergency messaging available in languages prevalent in the affected area(s) and in multiple formats, such as audio, large print and captioning and ensuring that websites providing emergency-related information are accessible.
  3. Making use of multiple outlets and resources for messaging to reach individuals with disabilities, individuals with limited English proficiency and members of diverse faith communities.
  4. Considering and planning for the needs of individuals with mobility impairments and individuals with assistive devices or durable medical equipment in providing health care during emergencies.
  5. Stocking facilities with items that will help people to maintain independence, such as hearing aid batteries, canes and walkers.

Additionally, the CDC released a bulletin on reducing stigma in relation to COVID-19, which may be a helpful reminder to personnel in these unusual times.

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