On October 13, 2022, Xavier Becerra, Secretary of Health and Human Services, extended the COVID-19 Public Health Emergency (PHE) for a record-breaking eleventh time. The COVID-19 PHE was first announced in January 2020 by Alex Azar II, the HHS Secretary at the time. Becerra granted the prior extension to July 15, 2022. The COVID-19 PHE’s most recent extension is for an additional 90 days; the new date is January 11, 2023. In response to the COVID-19 PHE, a number of flexibilities were introduced, including modifications to Medicare to increase coverage of telehealth services during the COVID-19 pandemic. Medicare beneficiaries from all geographical areas, not only those in rural areas, were insured under the waivers. Medicare also increased the number of services that could be supplied remotely, allowed beneficiaries to have telehealth visits while still in their homes, and allowed the visits to be done via smartphones.
A Notice of Enforcement Discretion regarding the provision of telehealth services in good faith was also released by the Office for Civil Rights of the Department of Health and Human Services. OCR stated in its COVID-19 telehealth guidance that it would “exercise its enforcement discretion and will not impose penalties for non-compliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.”
The OCR’s Notice of Enforcement Discretion informed healthcare providers on their permitted uses of remote communication products in order to contact their patients. This included devices which would not typically fall under the rules and regulations of HIPAA law. In order to give states enough opportunity to prepare, the HHS has previously agreed to provide them a 60-day notice before the COVID-19 PHE expires or the HIPAA telehealth flexibilities are terminated. Additionally, the HHS must give advance notice to healthcare organizations so that they can be prepared for their members. It is almost certain that a new extension will be announced in the absence of any such notices. The 60-day notification period must be given by mid-November if it is decided not to extend the COVID-19 waivers past January 2023.