taking a patient’s temperature or other vitals remotely, and diagnosis or
treatment of non-COVID-19 related conditions, such as review of physical
therapy practices, mental health counseling, or adjustment of prescriptions,
among many others.
9. What may constitute bad faith in the provision of telehealth by a
covered health care provider, which would not be covered by the
Notification of Enforcement Discretion regarding COVID-19 and
remote telehealth communications?
OCR would consider all facts and circumstances when determining whether a
health care provider’s use of telehealth services is provided in good faith and
thereby covered by the Notice. Some examples of what OCR may consider a
bad faith provision of telehealth services that is not covered by this Notice
include:
Conduct or furtherance of a criminal act, such as fraud, identity theft,
and intentional invasion of privacy;
Further uses or disclosures of patient data transmitted during a
telehealth communication that are prohibited by the HIPAA Privacy
Rule (e.g., sale of the data, or use of the data for marketing without
authorization);
Violations of state licensing laws or professional ethical standards that
result in disciplinary actions related to the treatment offered or
provided via telehealth (i.e., based on documented findings of a health
care licensing or professional ethics board); or
Use of public-facing remote communication products, such as TikTok,
Facebook Live, Twitch, or a public chat room, which OCR has identified
in the Notification as unacceptable forms of remote communication for
telehealth because they are designed to be open to the public or allow
wide or indiscriminate access to the communication.
10. What is a “non-public facing” remote communication product?
A “non-public facing” remote communication product is one that, as a
default, allows only the intended parties to participate in the communication.
Non-public facing remote communication products would include, for
example, platforms such as Apple FaceTime, Facebook Messenger video
chat, Google Hangouts video, Whatsapp video chat, Zoom, or Skype. Such
products also would include commonly used texting applications such as
Signal, Jabber, Facebook Messenger, Google Hangouts, Whatsapp, or