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California Relaxes Telehealth Services Rules in Light of COVID-19

By Procopio Partner Robert G. Marasco and Law Clerk Bella M. Olmedo

Health care providers in California now have greater flexibility to provide telehealth services to patients pursuant to the executive order issued by Governor Gavin Newsom on April 3, 2020.The order allows more flexible use of telehealth services for routine and non-emergency medical services by waiving certain state and privacy and security requirements for health care providers.

This action is similar to the waiver issued by the U.S. Department of Health and Human Services regarding requirements imposed under HIPAA. The order allows health care providers to provide telehealth services with significantly less risk of penalties for procedural omissions.

Importantly, the new executive order authorizes:      

  1. Waiver of  any requirement for health care providers to obtain and document verbal or written consent before the use of telehealth services;
  2. Waiver of administrative fines, civil penalties and causes of actions arising out of negligent or inadvertent unauthorized access or disclosure of confidential health information during the good faith provision of telehealth services;
  3. Waiver of civil penalties and causes of action related to the timely notification to patients of a breach of the security system resulting from inadvertent unauthorized access or disclosure of confidential health information during the good faith provision of telehealth services;
  4. Deadline extension for notification to the Department of Public Health and to patients of the unauthorized access or disclosure of health information. The deadline is extended from a period of 15 days to a period of 60 days, when the unauthorized access or disclosure is related the good faith provision of telehealth services;
  5. Waiver of administrative penalties and causes of action for unauthorized access or disclosure of health information as a result of the use of technology that does not comply with federal or state law when the unauthorized access or disclosure is related the good faith provision of telehealth services;
  6. The violation of any statutes associated with the waivers in this order will not constitute unprofessional conduct or otherwise be cause for professional discipline, when the violation arises out of the good faith provision of telehealth services.

The above waivers are applicable to all telehealth services, regardless of whether the services are related to diagnosis and treatment related to COVID-19.

For more information regarding the executive order, please see here.

 

Robert G. Marasco is the leader of Procopio's Health Care practice group. He aids clients in a wide spectrum of business situations. In the civil context, he acts as an outside general counsel to a variety of businesses advising on various legal and business matters, and also leads the strategic litigation needs of these businesses. In the health care context, Robert advises clients, including independent physician associations, foundation-based physician groups, and other medical practices on health care compliance and fraud and abuse, the Anti-Kickback Statute, the Stark Law, and defends clients against OIG health care audits and False Claims Act matters and governmental investigations. He also advises on compliance with health care privacy laws such as HIPAA and the California CMIA, investigates data privacy compliance, and responds to data breaches. Additionally, Robert has extensive experience representing hospital medical staffs in disciplinary proceedings and is authorized by the CA Society for Healthcare Attorneys to serve as a hearing officer for such matters.