Telemedicine’s Future is Now, as Providers Navigate Evolving Federal and State Laws and Regulations

Telemedicine – the practice of caring for patients remotely, with the provider and patient not physically present in the same location – has been on the rise in recent years, as videoconferencing technology has become more readily accessible. The benefits of telemedicine are clear: healthcare providers can safely and efficiently interview, examine, triage, and monitor patients remotely, allowing providers to reduce human exposures, while also advancing access to high quality care. As the COVID-19 coronavirus pandemic continues to spread, healthcare providers are increasingly utilizing telemedicine to coordinate care and minimize potential provider exposure: the Cleveland Clinic has seen a fifteen-fold increase in telehealth visits over past week; here in Philadelphia, Penn Medicine has increased the number of practitioners delivering remote consults from six to 60, and Jefferson Health has seen a twenty-fold increase in virtual visits in recent days. Telemedicine is here to stay, and the laws governing telemedicine issues are quickly changing as a result of the COVID-19 pandemic.

LEGAL LANDSCAPE

The legal and regulatory landscape related to telemedicine has been evolving in recent years, and continues to evolve during the pandemic emergency. Generally, laws and regulations at the federal and state levels have been expanded to allow for greater utilization of telemedicine platforms, including improvements to reimbursement for telemedicine services, modifying technological requirements, updates to licensure and credentialing rules, issues involving cross-border telemedicine visits, and dealing with rules related to non-physician providers. In implementing telemedicine platforms, providers must be ready to address numerous legal issues involving reimbursement, compliance, and contractual arrangements.

Both Medicare and Medicaid have increasingly expanded telemedicine reimbursement to include a broader array of services and patient care situations, as has Medicare Advantage. Separately, many states have adopted private payer legislation to facilitate or mandate private payer reimbursement for telemedicine services. And in response to COVID-19, on March 13, 2020, the Trump Administration announced an expansion of Medicare’s telehealth benefits to seniors living outside of rural areas for the first time, retroactive to March 6, 2020, opening the doors to telemedicine access for tens of millions of high-risk senior patients across the country for the duration of the coronavirus emergency. Further, the U.S. Dept. of Health and Human Services (HHS) Office for Civil Rights announced it will waive potential penalties for HIPAA violations against healthcare providers that serve patients through widely available communication apps such as FaceTime or Skype, in lieu of mandating HIPAA-compliant video interfaces. And on March 17, 2020, HHS’s Office of Inspector General (OIG) issued a Policy Statement and a companion Telehealth Factsheet notifying healthcare providers that they will not be subject to administrative sanctions for reducing or waiving cost-sharing amounts for telehealth services furnished to Medicare beneficiaries during the COVID-19 outbreak. The purpose behind OIG’s Policy Statement is to enable Medicare beneficiaries, who are reportedly the most vulnerable to the COVID-19 virus, to receive medical care such as routine office visits, prescription refills, preventative screenings, and mental health services without having to travel to a doctor’s office or a healthcare facility. Generally, healthcare providers who waive cost-sharing amounts, such as copayments, coinsurance, and deductibles, are subject to liability under the federal Anti-Kickback Statute and other relevant rules. Importantly, OIG’s Policy Statement applies to all telehealth services, and is not limited to services provided only in connection with the diagnosis or treatment of COVID-19.

Separately, in a meeting at the White House on March 10, 2020, insurance companies Anthem, UnitedHealthGroup Humana, Cigna, Aetna, and Blue Cross Blue Shield Association agreed that the costs of receiving telehealth services would fall to insurers, rather than patients. Aetna, a CVS Health company, had already announced that it would offer zero co-pay telehealth visits for any reasons for 90 days – a significant shift in its billing practices.

Here in Pennsylvania, Governor Tom Wolf, on the same day as the federal Medicare decision, removed the state’s restrictions on using telemedicine in Medicaid, the state-directed government insurer for low-income patients. And on March 18, 2020, the Pennsylvania Department of State announced that (1) healthcare professionals licensed under any of the Department of State’s Bureau of Professional and Occupational Affairs licensing boards can provide services to patients via telemedicine during the coronavirus emergency; and (2) Pennsylvania will allow practitioners in other states to provide medical services to Pennsylvanians via the use of telemedicine without obtaining a Pennsylvania license for the duration of the coronavirus emergency.

The spread of COVID-19 has hastened the consideration and development of rules and regulations pertaining to telemedicine at the federal and state level, and likely will usher in a new era of telemedicine – a major benefit for providers and consumers. But providers must understand their legal obligations, and seek counsel in setting up their practices relating to telemedicine, in an ever-shifting legal landscape.

PRACTICIONER OBLIGATIONS AND DUE DILIGENCE

Importantly, healthcare practitioners must provide telemedicine services in accordance with the laws of the state where the patient is located, in addition to complying with applicable federal law. If the provider chooses to provide telemedicine services to individuals located in other states, the provider must confirm and comply with the other states’ licensure requirements and telemedicine laws. Additional due diligence required to implement telemedicine into a healthcare practice should include the following checkpoints:

• • Ensure providers are licensed in the states where patients will be assessed and treated
  • Consider potential exceptions to licensure and licensure compacts
  • Evaluate vendor contracting for telecommunications tools to ensure compliance with state and federal security and data privacy laws
  • Ensure compliance with federal and state laws prohibiting the prescribing of controlled substances via telemedicine
  • Ensure compliance with state telemedicine standards and technology requirements in any state where a patient is receives care
  • Ensure compliance with state delegation and supervision laws of non-physician providers who will be providing telemedicine services
  • Evaluate “credentialing by proxy” options to streamline credentialing needs of remote providers
  • Evaluate vendor contracting to apportion rights and responsibilities pertaining to billing for clinical services, patient medical records, placing clinical care orders, and arranging for follow-up care
  • Consider reimbursement options and institute systems to capture reimbursement
  • Ensure compliance with federal or state laws including HIPAA, the Emergency Medical Treatment and Labor Act, and other relevant laws

CLOSING THOUGHTS

Telemedicine’s broad use has arrived – but federal and state laws, while rapidly evolving both before and in response to the COVID-19 pandemic, continue to change, making it challenging for providers to navigate the ever-shifting landscape. Healthcare providers must continue to evaluate and understand applicable legal and regulatory issues relating to compliance, reimbursement, and contractual arrangements for their telemedicine offerings – both today, and into the future.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.