by Josh King, General Counsel, RealSelf
The COVID-19 pandemic has brought rapid change to our communities and businesses. In many areas, aesthetic treatment offices face mandated closures, and social distancing measures are keeping patients at home. However, this doesn’t mean providers can’t consult with patients virtually—and set up a line of in-person treatment bookings for when business resumes.
On March 17, 2020, the Department of Health & Human Services announced that it is waiving potential HIPAA penalties for good faith use of telemedicine. This waiver will last for at least as long as this public health emergency persists. Under the guidance provided by HHS:
- This HIPAA waiver applies to telehealth for any reason, including elective procedures. As the guidance notes, it’s important at this time to maximize the ability of providers to communicate with patients without face-to-face interaction.
- You can use “any non-public facing remote communication product that is available to communicate with patients.” This includes FaceTime, Zoom, Skype, Facebook Messenger, Google Hangouts and the like. It obviously would NOT include broadcast video services like TikTok, Twitch, or Facebook Live.
- Along with treating virtual consults with the same sensitivity you would in-office consults (e.g., don’t do your end of a virtual consult from a public place), you should enable any available encryption and privacy modes when using these applications. You may also want to advise patients at the outset of a video consult—particularly when dealing with sensitive procedures—that there are heightened privacy risks involved when using a non-HIPAA-compliant service.
This HIPAA waiver offers peace of mind that you can immediately start connecting with patients virtually—using off-the-shelf products that your patients already have on their phones. And while the waiver isn’t likely to last once this emergency is over, you will have also built your skills and processes for using telemedicine, and can choose to migrate to a HIPAA-compliant platform at that time.
The information provided in this article does not, and is not intended to, constitute legal advice.
About the author
Josh King is the General Counsel for RealSelf, the web’s leading resource for consumers researching aesthetic procedures. Prior to joining RealSelf, he spent over a decade as Chief Legal Officer at Avvo, helping that consumer online legal resource grow from tiny startup to industry leader. Josh regularly speaks and writes on issues relating to digital media, communications, and professional ethics. He’s also been known to go on about bike commuting, politics, bourbon, and traveling. Read more of Josh’s thoughts on social media and the regulation of professional speech at his aptly titled blog, “Socially Awkward”.
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