On February 12, 2021, the Office for Civil Rights (OCR) at the U.S Department of Health and Human Services (HHS) announced the details of its previously-announced discretion in the enforcement of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Health Information Technology for Economic and Clinical Health (HITECH) Act related to privacy, security, and date breaches. OCR will not penalize covered health care providers or their business associates for non-compliance under HIPAA for the good faith use of online or web-based scheduling applications (WBSAs) for scheduling COVID-19 vaccination appointments during the COVID-19 pandemic.
During the COVID-19 public health emergency, HIPAA covered providers, such as large pharmacy chains, or business associates acting on behalf of the covered providers, may utilize WBSAs to schedule individual appointments for COVID-19 vaccinations. For the purposes of this exercise of discretion, a WBSA is an online or web-based application that only allows the intended parties to access the data and that provides individual appointment scheduling related to largescale COVID-19 vaccination. Technology that directly connects to electronic health records (EHR) systems used by covered providers is not included in this discretionary measure and does not constitute a WBSA. The HIPAA privacy rules allow business associates of a covered entity to use and disclose protected health information (PHI) for certain functions, only as dictated by a business associate contract or other agreement. However, during the COVID-19 pandemic, health care providers need to quickly schedule many appointments for COVID-19 vaccinations and often do this through WBSAs. Some of these online scheduling applications, and the way in which healthcare providers use them, may not comply with the HIPAA privacy rules. Furthermore, vendors of the WBSAs may not know providers are using these applications to create and send PHI, potentially making the WBSA vendors business associates under HIPAA.
OCR will exercise discretion in the enforcement of HIPAA privacy rules and will not penalize covered healthcare providers, their business associates, or WBSA vendors who are technically business associates, for noncompliance as it relates to the scheduling of individual COVID-19 vaccination appointments during the COVID-19 pandemic. This enforcement discretion applies to covered healthcare providers and their business associates, which are, in good faith, using WBSAs to schedule COVID-19 vaccination appointments, as well as WBSA vendors whose platform is being used to schedule COVID-19 vaccination appointments. Discretion does not apply to covered providers or business associates for activities unrelated to the scheduling of COVID-19 vaccinations or if the covered providers or business associates fail to act in good faith. Instances where a covered provider or business associate are not acting in good faith include: the use of a WBSA that allows the sale of personal information collected, the use of a WBSA for purposes other than scheduling COVID-19 vaccination appointments, the use of a WBSA without reasonable safeguards to protect the PHI, and the use of a WBSA to screen individuals for COVID-19 before an in-person visit.
Covered health care providers and their business associates using WBSAs in good faith to schedule COVID-19 vaccination appointments should implement reasonable safeguards to protect the privacy of PHI. Recommended safeguards include, using and disclosing the least amount of PHI necessary for appointment scheduling, using encrypted technology, enabling all privacy settings in the WBSA, ensuring any storage of PHI from the WBSA is temporary, ensuring the WBSA vendor does not disclose PHI in any manner that does not comply with the HIPAA privacy rules.
For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding new proposed regulations. If you or your healthcare entity has any questions pertaining to healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or firstname.lastname@example.org.