Healthcare Law Updates

Expanding Telemedicine During COVID-19

Like almost everything, telemedicine practices have been impacted by the COVID-19 pandemic. The need for social distancing has created an urgent need for healthcare providers and patients to use telemedicine for patient care compared to the traditional person-to-person medical visits. Telemedicine visits reduce the exposure to infections that may be more prevalent if the care is provided in a medical facility. In an effort to facilitate the use of telemedicine for patient care, there have been a number of important federal and state statutes and supplements to regulations to facilitate this type of medical care.

On January 31, 2020, a Public Health Emergency was declared by the Secretary of Health and Human Services Alex M. Azar II, effective as of January 27, 2020, to deal with Novel Coronavirus. This was followed by the Executive Order issued by President Trump on March 13, 2020, Prioritizing and Allocating Health and Medical Resources to respond to the Spread of COVID-19. As a result this permitted a number of waivers under Section 1135 and 1115 of the Social Security Act to expand the use of telemedicine.

Additionally, three bills were passed into law by Congress: Coronavirus Preparedness and Response Supplemental, 03/06/2020; Families First Coronavirus Response Act, 03/18/2020; and Coronavirus Aid, Relief, Economic Security Act (CARES), 03-27-2020. Each of these statutes have some provisions to enlarge the availability of use of telemedicine.

Prior pandemic restrictions on limiting physician reimbursement to provide telemedicine care was expanded to permit telecare without geographical limitations. Previously, reimbursement of telemedicine visits were restricted to geographic areas that were economically deprived or rural geographical locations. Additionally, billing coding under Centers for Medicare & Medicaid Services (CMS) regulations were expanded to permit the broadened scope of telemedicine care. Instead of only permitting payment at the lower “facility” rate billing coding was permitted to be allowed to the higher “in person visit” rate. This waiver increased the reimbursable rate by 30% to physicians. Waivers also expanded the type of healthcare providers that might use telemedicine with their patients, including social workers, mental health providers, physical therapy services and occupational medicine services. Additionally, the scope of patients that could benefit from telemedicine was expanded beyond established patients in a physician’s practice and would apply to new patients as well. Further, various regulations that limited reimbursements to be only for in-person visits for certain types of care were expanded to now include telemedicine examinations and care.

States have also, through executive orders issued by governors and regulations issued by state licensure boards, expanded the availability of telemedicine care. However, regulations governing the provision of telehealth services vary by state.  For example, most states, including Maryland, require a provider to be licensed in the state where telehealth services are delivered. Some states also require providers practicing telehealth across state lines to have a valid license in the state where the patient is located. Providers are encouraged to seek guidance from their professional licensing board regarding license-specific provisions for telehealth.

Telehealth does not alter covered entities or business associates obligations under the Health Information Portability and Accountability Act of 1996 (HIPAA). Health care providers are responsible for safeguarding personal health information for health care services provided in person or virtually. Security to protect health information still must be maintained by making sure that the virtual platform used to provide the audio and video communication between physician and patient has security safe guards in place.