Newsom renews order aligning CA with feds on telehealth and patient data; allows patient consent waiver to expire

September 28, 2021

Governor Newsom has renewed most of  Executive Order N-43-20, which aligns California with federal emergency rules regarding the release of patient information during the good faith provision of telehealth. The order had been set to expire on September 30, 2021, but will now be extended through the end of the public health emergency.

During the COVID-19 pandemic, many physicians have either implemented or expanded their use of telehealth as a treatment modality. Telehealth has been an essential treatment modality during this time, as it allows patients to access their physicians while maintaining social distancing. With the surge of the Delta variant and the ongoing rollout of the vaccine, many patients are continuing to seek treatment remotely.

One component of the Executive Order N-43-20 was allowed to expire. Previously, the Governor had waived a requirement for physicians to obtain either verbal or written consent prior to the provision of telehealth. As this component expires, physicians will now be subject to the pre-pandemic requirement to obtain patient consent. This consent can either be written or obtained verbally and documented in the patient record.

For the duration of the federal public health emergency, the U.S. Health and Human Services Office of Civil Rights (OCR) has issued a Notice of Enforcement Discretion. In the notice, OCR announced it will not enforce penalties on physicians under HIPAA rules during the good faith provision of telehealth. (Click here for information about the OCR notice.)

Executive Order N-43-20  aligns state requirements to the federal notice, protecting physicians from prosecution for minor and inadvertent disclosure of patient data. The California Medical Association (CMA) encourages physicians to educate their patients about the need to find a quiet and secure location to see their physicians remotely.


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