Limited Waiver of HIPAA Sanctions in Response to COVID-19
As of March 15, 2020, the U.S. Department of Health and Human Services will not sanction or issue penalties against hospitals for failing to comply with certain provisions of the Health Insurance Portability and Accountability Act (HIPAA) during the COVID-19 health emergency.
The Department identified the following HIPAA Privacy Rule provisions as subject to the waiver:
- The requirements to obtain a patient’s agreement to speak with family members or friends involved in the patient’s care.
- The requirement to honor a request to opt-out of the facility directory.
- The requirement to distribute a notice of privacy practices.
- The patient’s right to request privacy restrictions.
- The patient’s right to request confidential communications.
The waiver of HIPAA sanctions applies only:
- In the emergency area identified in the public health emergency declaration;
- To hospitals that have instituted a disaster protocol; and
For up to 72 hours from the time the hospital implements its disaster protocol.
As of March 17, 2020, the Department will also waive HIPAA penalties for good faith use of telehealth services by providers using non-public facing audio or video communication products during the COVID-19 health emergency. This means applications like Skype, Apple FaceTime, Facebook Live, Google Hangouts, and similar public video communication applications may be used by providers even though the platforms do not fully comply with HIPAA requirements.
In Minnesota, healthcare providers are subject to additional privacy considerations pursuant to the Minnesota Health Records Act. Under Governor Walz’s Emergency Executive Order 20-12, the Minnesota Department of Human Services has temporary authority to waive or modify requirements to allow the agency and healthcare providers to continue providing essential programs and services to Minnesotans. A list of waivers currently in effect is available at the Minnesota Department of Human Services website: https://mn.gov/dhs/waivers-and-modifications.
Do you have a legal question regarding COVID-19 or any employment related matter? Give Parker Daniels Kibort a call at 612.355.4100.