HHS and OCR Ease HIPAA Applicability and Enforcement to Support Healthcare Delivery During COVID-19 Public Health Emergency

HHS and OCR Ease HIPAA Applicability and Enforcement to Support Healthcare Delivery During COVID-19 Public Health Emergency

As the COVID-19 pandemic is leading to social distancing to limit the spread of the disease, health care providers and patients look to remote communication technology to facilitate the provision of health care services related to COVID-19 symptoms, as well as other health care conditions.  Additionally, public health measures to limit the spread of the disease increasingly require the sharing of health information.  As a result, questions have arisen about what information sharing is permitted under HIPAA.  While HIPAA remains in effect during this time, waivers of certain enforcement provisions may allow for enhanced information sharing, and the exercise of enforcement discretion enables the use of an expanded range of telehealth communication platforms that would not generally be permissible.

Waivers and HIPAA Provisions

While the HIPAA Privacy Rule is not suspended during a national or public health emergency, Section 1135(b)(7) of the Social Security Act (SSA) allows the Secretary of the U.S. Department of Health and Human Services (HHS) to waive certain HIPAA Privacy Rules sanctions and penalties in such an event.

Secretary Azar of HHS and President Trump have declared a nationwide public health emergency under Section 319 of the Public Health Service Act and a national emergency under Sections 201 and 301 of the National Emergencies Act, respectively. President Trump’s proclamation of a national emergency, from March 13, specifically stated that the Secretary of HHS “may exercise the authority under section 1135 of the SSA to temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule throughout the duration of the public health emergency declared in response to the COVID‑19 outbreak.”

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