On October 13, 2022, U.S. Department of Health and Human Services Secretary Xavier Becerra officially extended the COVID-19 Public Health Emergency (PHE) order for another 90 days, until mid-January, 2023.

Does this mean the PHE will expire in three months? It is unclear. PHEs can only be extended for 3 months at a time. It could be allowed to expire at that time, or renewed again in January (it has been renewed 10 times since it went into effect in January of 2020). But the government has promised to give 60 days notice before allowing the PHE to expire. This means if this were going to be the last renewal, we would expect to hear something in about a month giving us our two month warning.

The bad news: Even though the federal PHE is still in place, many state PHEs have expired, so telehealth coverage in those states may have returned to pre-pandemic levels. Also, many insurance plans do not all pay attention to the federal PHE when it comes to their coverage of telehealth. So be sure to check with your client’s health plan for the latest coverage information.

The good news: With this extension, the Office of Civil Rights (OCR) will continue to allow HIPAA-covered providers to use telehealth platforms that are not HIPAA-compliant (like FaceTime) without penalty, at least until the Public Health Emergency is over. Clinicians may also use other applications that allow for private video chats, including Facebook Messenger video chat, Skype, or Google Hangouts video for telehealth without worrying that the OCR will penalize them. Normally, to be HIPAA-compliant, the clinician would need to use a platform that could provide the clinician with a Business Associate Agreement (BAA). However, video communication applications that are public-facing such as Facebook Live and Tik Tok should not be used.

It is also important to note that while the federal government may not require that you use a HIPAA-compliant telehealth platform at this time, some insurance plans do require this — check with the health plan. For more information about telehealth platforms and the Public Health Emergency Order, click here