Opportunities and Risks for Telehealth under HIPAA and State Privacy Responses to the COVID-19 Pandemic (Part 2)

The Department of Health and Human Services, Office for Civil Rights’ HIPAA waivers in response to the COVID-19 pandemic offer opportunities for health providers seeking to rapidly expand access and connectivity for patients on a scale never seen before. Some states, including Medicaid programs, have followed suit. While such waivers of privacy and security laws present new opportunities, they also pose significant immediate and long-term risks for providers that fail to utilize these temporary waivers properly. Providers should consider and remain wary of the waivers’ limitations, particularly given the uneven responses from states, the ongoing risk of common law privacy claims, third party payer contractual terms and coverage requirements, technology vendors’ licensing terms, and the ever-present risk of government investigations and reviews once the COVID-19 pandemic comes to an end. This presentation explored the opportunities that these waivers present and the risks that providers should weigh carefully and mitigate as they continue to respond to the COVID-19 pandemic and plan for what comes after.