HHS Announces Expiration of COVID-19 PHE HIPAA Notifications of Enforcement Discretion

COVID-19; Care Providers; Legal; Legislative

This week, the U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) announced that the Notifications of Enforcement Discretion issued under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Health Information Technology for Economic and Clinical Health (HITECH) Act during the COVID-19 public health emergency will expire at 11:59 pm on May 11, 2023, due to the expiration of the COVID-19 public health emergency. 
While Congress extended many of the telehealth coverage flexibilities impacting AHCA/NCAL members and their residents permanently or until December 31, 2024, this policy change will no longer permit providers to use technology such as unsecure iPads, smart phones, or other technology for telehealth services unless they meet the stringent HIPAA patient privacy requirements after August 9, 2023. 
OCR is providing a 90-calendar day transition period for covered health care providers to come into compliance with the HIPAA Rules with respect to their provision of telehealth. The transition period will be in effect beginning on May 12, 2023, and will expire at 11:59 p.m. on August 9, 2023. OCR will continue to exercise its enforcement discretion and will not impose penalties on covered health care providers for noncompliance with the HIPAA Rules that occurs in connection with the good faith provision of telehealth during the 90-calendar day transition period. 
AHCA/NCAL​ strongly recommends that providers using telehealth services review and update their policies and procedures, equipment and arrangements related to telehealth services. Specifically, providers should evaluate the equipment and software technology they are using for telehealth services and the arrangements they have with technology vendors, as well as physicians, hospitals, and other providers to update agreements and policies related to telehealth prior to the end of the enforcement discretion transition period on August 9, 2023.  
The Notice of Expiration of Certain Notifications of Enforcement Discretion Issued in Response to the COVID-19 Nationwide Public Health ​Emergency may be found here

Per the HHS announcement, “OCR exercised HIPAA enforcement discretion throughout the COVID-19 public health emergency to support the health care sector and the public in responding to this pandemic,” said Melanie Fontes Rainer, OCR Director. “OCR is continuing to support the use of telehealth after the public health emergency by providing a transition period for health care providers to make any changes to their operations that are needed to provide telehealth in a private and secure manner in compliance with the HIPAA Rules.” 

In 2020 and 2021, OCR published four Notifications of Enforcement Discretion in the Federal Register regarding how the Privacy, Security, Breach Notification, and Enforcement Rules (“HIPAA Rules”) would be applied to certain violations during the COVID-19 nationwide public health emergency. These Notifications and the effective beginning and end dates are: