By Virginia Mimmack, Sara Harris, & Taylor McDowell
In response to the Coronavirus (COVID-19) national public health emergency, government agencies have taken steps to temporarily relax certain regulatory requirements regarding telemedicine technology and insurance coverage. This wave of changes is primarily targeted at increasing access to care to slow the spread of the virus and get help to those infected, but the new flexibility will allow for expedited care more broadly as well.
Expansion of Telehealth Coverage for Medicare Beneficiaries
On March 17, 2020, the Trump administration announced expanded Medicare telehealth coverage enabling beneficiaries to receive a wider range of healthcare services via telemedicine. The Centers for Medicare and Medicaid Services (CMS) is modifying telemedicine coverage on a temporary and emergency basis under the Coronavirus Preparedness and Response Supplemental Appropriations Act and pursuant to 1135 waiver authority, which permits the Secretary of the Department of Health and Human Services (HHS) to waive certain federal healthcare program requirements following a declaration of emergency.
In general, Medicare permits reimbursement of telehealth services in limited circumstances. In-home telehealth services are generally not covered, except in very narrow circumstances (e.g., certain treatment of beneficiaries with end-stage renal disease).
Under the new emergency declaration waivers, a provider may temporarily seek reimbursement for in-home telehealth services, including for “office” visits, mental health counseling, and preventative health screenings. The waiver will also provide coverage for telehealth services in several other settings as well.
- Under Medicare, a provider and patient must generally have a pre-existing relationship for a telehealth service to be covered. However, HHS has announced that it will not conduct audits of prior relationships for claims submitted during this public health emergency. This does not mean the provider-patient relationship requirements have been waived, but HHS may exercise discretion in enforcement. Since the purpose of the waivers is to reduce the likelihood that Medicare beneficiaries (who are older and often have serious medical conditions) are infected with the new Coronavirus, providers and healthcare facilities should keep that underlying rationale in mind when implementing any modified policies or protocols under these emergency provisions.
- Medicare providers can bill immediately under this new and expanded coverage for dates of service on or after March 6, 2020. Medicare will reimburse telehealth services under the Physician Fee Schedule at the same amount as in-person services. Medicare coinsurance and deductibles still apply for telehealth services. The HHS Office of Inspector General (OIG) has also issued a policy statement indicating that providers may reduce or waive a beneficiary’s coinsurance and deductible requirements for federal healthcare program telehealth services furnished during the declared state of emergency (a period of up to 90 days, unless extended). This temporary flexibility does not modify any other applicable coverage or payment rules, or prohibitions on kickbacks and referrals.
It is crucial for providers to keep in mind that HHS implemented these modifications to ensure reimbursement for providers who furnish covered items and services in good faith, but are unable to comply with one or more of the traditional requirements as a result of the consequences of the COVID-19 pandemic. Noncompliance outside these conditions may result in a denial of reimbursement or even a finding of fraud or abuse.
Telemedicine Across State Lines
CMS has also attempted to make it easier for healthcare providers to provide services across state lines. Specifically, it has temporarily waived requirements that when providing telemedicine services out-of-state providers must be licensed in the state where the patient is located. Instead, during this state of emergency, if a provider is licensed in at least one state, the provider may be reimbursed for treatment of patients residing in another state via telemedicine; provided that the state where the patient is residing has waived its licensing requirements and is allowing physicians licensed in other states to practice within their state.
It is important to note that while CMS has tried to allow for nationwide coverage, each state still controls who is allowed to practice within its borders. Further, all providers must continue to adhere to all applicable state law and medical board regulations related to telehealth, including but not limited to the formation of an appropriate physician-patient relationship. Therefore, before a provider sees patients in a state where they are not currently licensed, they should ensure that the state where they want to provide services has waived the relevant licensing requirements and that the state will allow the type of communication intended by the provider (i.e., audio only, video-conference, etc.).
It appears that many states are following the federal government’s lead on this issue and waiving certain licensing requirements or implementing emergency licensure options to make practicing telemedicine across state licenses easier. These states include: Florida, Louisiana, Mississippi, North Carolina, Tennessee, Texas, and Washington. Importantly, most of these states will still require a provider to apply for some type of temporary or emergency license. Other states have not yet implemented temporary licensure modifications, but many state emergency proclamations appear to allow for such measures and we anticipate more to follow in the coming days.
HIPAA Enforcement Authorities Ease
On March 17, 2020, the OCR issued a notice stating that it will “exercise enforcement discretion and not impose penalties for noncompliance with regulatory requirements under the HIPAA rules against covered healthcare providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.” This has broad applicability to various unsecured audio/video communications apps. Although the use of such platforms is not technically not prohibited by HIPAA, providers have generally avoided unsecure patient communication under the assumption that HIPAA safeguards and standards would not allow it.
Based on the new OCR notice, healthcare providers may now use Skype, FaceTime, Zoom, Doxy.me, Updox, VSee, Google G Suite Hangouts Meet, and other similar technologies to communicate with patients. The OCR will not levy a penalty for doing so at this time.
Please see our previous article on COVID-19 response by HIPAA enforcement authorities for additional information.
DEA Modifications on Telehealth
Following the HHS declaration of a public health emergency, the DEA also modified telemedicine requirements applicable to prescribing controlled substances. Temporarily, DEA-registered providers may issue prescriptions via telemedicine for controlled substances without a prior in-person medical evaluation. The telemedicine visit must use real-time audio-video (i.e. videoconference). The prescription must also be issued for a legitimate medical purpose and the provider must continue to adhere to all other applicable federal and state laws, including for example, provisions governing telemedicine, the standard of care, and scope of practice. When HHS’s designation of a public health emergency expires, the DEA prescribing rules will revert to the general requirements under the Controlled Substances Act, which generally prohibits the prescription of Controlled Substances via telemedicine except under very specific circumstances. Nevertheless, it will be important for providers to also check each state’s rules in connection with prescribing controlled substances before beginning this practice. Many states have temporarily waived restrictions limiting providers ability to prescribe controlled substances during this public emergency.
Relaxation of Telemedicine Standards in Texas
As mentioned above, several states are relaxing their telehealth regulations. As a Texas-based law firm, we bring to your attention that, COVID-19 has necessitated changes to telemedicine policies in the State of Texas. Following Governor Abbott’s state disaster declaration, the Texas Medical Board (TMB) has implemented procedures to waive certain telemedicine requirements to facilitate the response of healthcare professionals to COVID-19. Key actions taken in this respect by the State of Texas include:
- Governor Abbott temporarily suspended Occ. Code Section 111.005(a)–(b), which establishes the requirements for establishing a practitioner-patient relationship via telemedicine. This suspension remains in effect until terminated by the Office of the Governor or until the March 13, 2020, disaster declaration is lifted or expires. As a result of this suspension, providers have more flexibility regarding the use of telemedicine technology to diagnose and treat patients.
- Ordinarily, to establish a physician-patient relationship, a provider is required to use either (1) live video and audio, or (2) asynchronous, store-and-forward technology (with or without a real-time phone call) to obtain clinically relevant data or the patient’s medical records (e.g. lab results or prescriptive history). The TMB released initial telemedicine guidance on March 14, 2020 stating that audio-only telephone communications may be used to establish a physician-patient relationship for all purposes, meaning a phone consultation, in itself, is sufficient to establish a physician-patient relationship and may be used for diagnosis, treatment, and ordering of tests for any conditions (not just for issues or conditions related to the Coronavirus). On March 19, 2020, the TMB published a helpful FAQ regarding this Coronavirus-driven change. The updated guidance includes details on the temporary telemedicine expansion and related informed consent, prescribing, and reimbursement issues.
- On March 17, 2020, Governor Abbott waived certain state regulations and directed that the Texas Department of Insurance (TDI) issue a new emergency telemedicine rule, to be effective immediately. Under the new rule, physicians and other healthcare professionals in Texas will be eligible for payment from insurance plans regulated by the TDI for medical visits they conduct over the phone at the same rate they would receive for in-person visits.
These changes are significant, but they do not affect the standard of care for the practice medicine in the State of Texas, which must be met when practicing telemedicine even under these relaxed parameters. The TMB’s stated purpose in relaxing the telemedicine technology rules is that strict compliance at this time “could prevent, hinder, or delay timely delivery of necessary medical services in relation to efforts to cope with the declared disaster.” Healthcare providers should keep this purpose in mind when determining whether any particular telephone-only visit is appropriate, sufficient, or necessary.
For Texas providers, the combination of the TMB modifications along with HHS’s statement that it will not investigate whether a prior provider-patient relationship exists for a particular telehealth service provides a significant (but temporary) expansion of access to care for Medicare beneficiaries in Texas, with promises of payment to providers for properly rendered services.
Given the unprecedented nature of the times, the governmental response to COVID-19 remains ongoing, and subsequent changes may come into effect as the public health crises evolves. You can keep up with the latest COVID-19 legal news on the Jackson Walker Coronavirus microsite.
- JW Coronavirus Insights & Resources webpage »
- COVID-19 & Your Business: Frequent Questions »
- e-Alert: HIPAA Enforcement Authorities Allow Skype, Facetime for Provider-Patient Telehealth Services »
- Webinar: “COVID-19 & Your Business: Families First Coronavirus Response Act” »
Healthcare Practice Chair Virginia Alverson Mimmack provides comprehensive legal services to a broad spectrum of healthcare providers—particularly physicians, physician-owned entities, hospitals, and healthcare startup companies. With an interest in the emerging telemedicine industry, Virginia regularly counsels clients on the ever-changing delivery platforms of healthcare. Since 2018, she has been recognized among Chambers USA: America’s Leading Lawyers for Business in Healthcare – Texas.
Sara K. Harris regularly defends employers in discrimination and wrongful termination lawsuits, government investigations, and wage and hour matters. Her areas of interest include executive and physician employment agreements, labor union disputes, internal investigations, and non-compete contracts. Sara also has experience in healthcare litigation and regulatory matters, including telemedicine and digital health, state and federal regulatory compliance, entity licensing, and insurance disputes.
Taylor McDowell represents public and private companies, hospitals, state institutions, and investor groups in public and private offerings, mergers and acquisitions, fund formations, and investment transactions. Taylor also represents startup companies and assists clients with entity formation and corporate governance. He is involved in pro bono services and has drafted asylum petitions for refugees and helped institute microfinance programs for international nonprofits.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.