Coronavirus Regulatory and Legal-Telehealth

Coronavirus Regulatory and Legal-Telehealth

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LEGAL/REGULATORY—TELEHEALTH 
April 1, 2020


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EXECUTIVE SUMMARY - Telehealth
General guidance that COPIC has provided to our insured providers who are considering providing medical services using telehealth technologies includes: the need for appropriate licensure when practicing outside the state, compliance with state board regulations and policies, understanding record retention requirements under state law, and privacy and accessibility requirements under both state law and federal privacy laws such as HIPAA. 

Some of these requirements have or may be waived in response to COVID-19. On March 17, 2020, the U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) announced enforcement discretion for telehealth remote communications during the COVID-19 nationwide public health emergency. https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/index.html

When considering providing telehealth services out of state in response to testing, treatment, and care of patients with COVID-19, providers should access state medical board sites for the latest information regarding guidance for health care professionals not currently licensed in the state.

Informed consent and disclosures:
• As with any medical service, patients should give informed consent for receiving care through telehealth technologies and understand any limitations. There isn’t a requirement for patients to sign a consent, but providers may choose to use a written form. 
• States such as Colorado and Nebraska have disclosure requirements for Medicaid patients prior to providing services using telehealth technologies (See CRS § 25.5-5-320 and NRS § 71-8505). These disclosures are not required in an emergency. A Nebraska Insurance Bulletin was issued March 23rd stating that DHHS and the DOI interpret the Governor’s declared state of emergency as triggering the emergency exception so there is no requirement to obtain a Medicaid patient’s signature on a written agreement prior to providing telehealth services.
• There are also relevant telehealth policies in Colorado (CMB Policies 40-27, 40-3, and 40-9). Nebraska regulations reference conforming to the ethics of the medical profession found in the American Medical Association’s Code of Ethics. 172 N.A.C. 88-010.02. (Ethical Practice in Telemedicine; Opinion 1.2.12 https://www.ama-assn.org/delivering-care/ethics/ethical-practice-telemedicine

EXPANDED OVERVIEW - Telehealth and COVID-19
General guidance that COPIC has provided to our insured providers who are considering providing medical services using telehealth technologies includes:
• Licensure, including through the Interstate Compact
• Compliance with state medical practice acts, regulations, and board policies
• Hospital credentialing
     o Facilitated under Medicare conditions of participation regulations, 42 CFR § 482.12; 42 CFR § 482.22.
• On-site supervision requirements when supervising allied health professionals
• State informed consent or notice requirements (e.g., for Medicaid)
• Prescribing requirements that may require at least one in-person visit under state law
• Controlled substance prescribing that must meet the requirements of the federal Ryan Haight Online Pharmacy Consumer Protection Act
• Medical record requirements including record retention requirements under state law, and privacy and accessibility requirements under both state law and federal HIPAA
• Liability considerations:
     o Standard of care—what a reasonably careful physician practicing in the same specialty would have done at the same time and under the same circumstances
     o Telemedicine guidelines developed by specialty associations
     o State patient compensation fund participation
     o Federal vs. state court (state protections like the peer review privilege may not apply)
     o Choice of law and forum shopping issues
     o Abandonment issues if physician unilaterally ends the physician-patient relationship without prior notice when a patient requires ongoing care

On March 17, 2020, the HHS Office of Civil Rights (OCR) announced enforcement discretion for telehealth remote communications during the COVID-19 nationwide public health emergency. https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/index.html

OCR will waive potential HIPAA penalties for good faith use of telehealth during the epidemic. HIPAA-covered health care providers may communicate with patients with any non-public facing remote communication product available to communicate with patients. This exercise of enforcement discretion applies to telehealth provided for any reason, regardless of whether the service is related to the diagnosis and treatment of health conditions related to COVID-19. For example, a provider may use popular applications such as Skype or FaceTime to allow for video chats without risk that OCR might seek to impose a penalty for noncompliance with the HIPAA rules. Providers are encouraged to notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications. 

The Center for Medicare & Medicaid Services issued a fact sheet March 30, 2020, summarizing Medicare telemedicine services including relevant billing and coding information. It also addresses when services can be provided by audio-only telephone. https://www.cms.gov/files/document/covid-19-physicians-and-practitioners.pdf.

When considering providing telehealth services out of state in response to testing, treatment, and care of patients with COVID-19, providers should access state medical board sites for the latest information regarding guidance for health care professionals not currently licensed in the state.
• The Iowa Governor’s March 26th proclamation suspended the Iowa Code section to the extent that it excludes from the definition of telehealth the provision of services through audio-only telephone transmission. It also directed the Insurance Commissioner to ensure that any health carrier reimburse a health care professional for medically necessary, clinically appropriate covered services by telehealth or via audio-only telephone transmission provided to a covered person on the same basis and at the same rate as services provided in person for the duration of the proclamation (April 16th). Additional licensing information relevant to telemedicine because of the Governor’s March 16th emergency declaration is available on the medical board site https://medicalboard.iowa.gov/

Informed consent and disclosures:
• As with any medical service, patients should give informed consent for receiving care through telehealth technologies and understand any limitations. There isn’t a requirement for patients to sign a consent, but providers may choose to use a written form. 
• States such as Colorado and Nebraska have disclosure requirements for Medicaid patients prior to providing services using telehealth technologies (See CRS § 25.5-5-320 and NRS § 71-8505). These disclosures are not required in an emergency. A Nebraska Insurance Bulletin was issued March 23rd stating that DHHS and the DOI interpret the Governor’s declared state of emergency as triggering the emergency exception so there is no requirement to obtain a Medicaid patient’s signature on a written agreement prior to providing telehealth services.
• There are also relevant telehealth policies in Colorado (CMB Policies 40-27, 40-3, and 40-9). Nebraska regulations reference conforming to the ethics of the medical profession found in the American Medical Association’s Code of Ethics. 172 N.A.C. 88-010.02. (Ethical Practice in Telemedicine; Opinion 1.2.12 https://www.ama-assn.org/delivering-care/ethics/ethical-practice-telemedicine