LOS ANGELES -The California Medical Association (CMA) is working closely with Governor Gavin Newsom’s office to waive Health Insurance Portability and Accountability Act (HIPAA) requirements so that more Californians can be treated remotely by their physicians during the COVID-19 outbreak.
“Telehealth has been huge because it keeps people out of hospitals so that patients with nonemergency conditions can consult with their physicians over zoom or the telephone,” said Anthony York, vice president of strategic communications with the CMA.
But because the state of California has stricter privacy laws than the federal government, remote healthcare required special attention from Gov. Newsom.
“The governor’s office reached out to us on a number of occasions,” York told the Southern California Record. “It took a couple of days but we achieved a temporary waiver of some privacy laws to allow for telehealth.”
Gov. Newsom signed an executive order on April 3, which eases certain state privacy and security laws for medical providers, so they can provide telehealth services without being penalized.
The Executive Order N-43-20 specifically states:
“The Office, in the exercise of its enforcement discretion, will not impose penalties for noncompliance with regulatory requirements imposed under the HIPAA Rules, as to covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.”
Remote healthcare employing telephone or video has been on the rise since the governor issued a shelter in place order to protect Californians from the spread of COVID-19 infection, according to the CMA website.
“Non-essential medical care like eye exams, teeth cleaning, and other elective procedures must/should be canceled or rescheduled,” said a spokesperson from the Office of Public Affairs for the California Department of Public Health in an interview. “If possible, healthcare visits should be done remotely.”
However, when consulting remotely, attorney Mike Arias suggests that physicians take precautions to prevent hacking.
“Zoom was criticized recently because of its failure to ensure that communication was protected from hacking,” Arias told the Southern California Record. “They implemented an identification code that people need to access a zoom call. Physicians should do the same or if using another form of e-communication to ensure that the technology has the necessary protections.”
Zoom advises professionals hosting meetings to use features like mute control and to confirm that no one else can share their screen, according to media reports.
In a separate bid to expand liability protections for health care professionals working on the front lines of the COVID-19 outbreak, the governor created California Health Corps for California health care workers volunteering to help during the COVID-19 outbreak in which both active and retired physicians are paid and provided with malpractice insurance coverage.
“Physicians don’t have to worry about liability protections as an obstacle for their service because there is language in California and on a federal level about expanding liability protection,” York said in an interview.
The governor also issued an executive order on March 30 waiving certain healthcare professional scope of practice requirements.
“There are various immunities for health care workers under the CA Emergency Services Act for when the Governor enacts a state of emergency,” said the California Department of Public Health spokesperson.
However, Arias, immediate past-president of the Consumer Attorneys of California, told the Southern California Record that true cases of negligence won’t be able to hide behind COVID-19 because state of emergency protections are simply a defense.
“Thinking there’s no harm and no foul is an overbroad expectation especially if someone is harmed or dies because of a negligent act even if it’s part of COVID 19 treatment,” he said. “I don’t think anyone should be concerned that simply because we are in the COVID-19 era that you won’t be able to pursue a righteous wrongful death or negligence claim against physicians.”
As for non-essential medical care and the physicians who continue to provide patients with elective medical care despite the ban, Arias has a special message.
“I will not hesitate to pursue a claim where a patient was infected with COVID-19 as a result of an elective treatment, such as a nose job or teeth cleaning, during this state of emergency,” said Arias in an interview.
As recently as March 20, teams of doctors at UC Davis Medical Center were performing breast augmentations, hip replacements and other elective procedures despite The Centers for Medicare & Medicaid Services, the Surgeon General and the American College of Surgeons (ACS) having strongly recommended a respite on non-urgent elective procedures, according to media reports.
“I believe it is a violation of law under the Governor’s order, and it is putting all those involved in providing that care at significant risk,” Arias said.