Employment Law Report

March 20, 2020

The use of telehealth and telecommunications technologies is seen as a principal way to treat patients during this time of self-isolation. However, to effectively use telehealth during a state of emergency that requires Americans to stay home meant Medicare and Medicaid would need to relax telehealth rules that restricted its use to HIPAA-compliant technology and that required patients to travel outside their home to a telehealth site, among other changes. The most significant changes for telehealth came from the Centers for Medicare and Medicaid Services (CMS), which the CMS laid out in its Telehealth Fact Sheet on March 17, 2020. To address the relaxation of rules related to HIPAA-compliance technology, the Office for Civil Rights (“OCR”), the agency responsible for enforcement of HIPAA, followed up with the following guidance: Notification of Enforcement Discretion for telehealth remote communications during the COVID-19 nationwide public health emergency. To read a summary of the new OCR guidance, click here.

The Kentucky Department for Medicaid Services followed suit and released its own guidance relaxing telehealth rules. The guidance makes it clear that use of non-HIPAA compliant telehealth communication tools are available for delivery of Medicaid telehealth services. It also provides for audio-only telephone services. Click here. See also new 907 KAR 2:300E: Click here. For an overview of Kentucky’s initiative click here.