There is no question that during the pandemic and duration of
the public health emergency, telehealth rose to the occasion
demonstrating its tremendous benefits to the health care industry
and will likely remain an integral part of the health care delivery
system. As we move out of the pandemic and the public health
emergency wanes, providers should exercise caution and stay abreast
of legal developments as they adopt long term telehealth policies
and procedures.
The benefits of telehealth were tested during the pandemic
when many laws and regulations that previously hindered the
adoption and growth of telehealth as a viable means to deliver care
and services were relaxed or waived. As we endeavored to
reduce the spread of the virus and assure access and continuity of
care, telehealth became the primary means of care delivery. As
reported in the Wall Street Journal on March 29, 2021, the number
of telehealth visits at the Cleveland Clinic increased from 37
thousand to 1.2 million during the period of 2019 through 2020.
Also as reported by the Wall Street Journal, 12.1 million Medicare
beneficiaries, which is more than 36% of patients with Medicare,
received health care by telehealth between mid-March through
mid-August 2020. The experience in the Capital Region was no
different. Enhanced access to health care through telehealth
during the pandemic provided the opportunity to compile data from
which to derive best practices as telehealth becomes a permanent
addition to the health care delivery system. As best
practices evolved based upon the evidence, federal and state
legislators became better positioned to advocate for permanent
changes to the laws and regulations that previously restricted the
adoption of telehealth as a viable means of delivering health care
services.
For instance, prior to the pandemic, in order to receive
telehealth services, the Centers for Medicare and Medicaid
("CMS") required that (i) the patient be located in
remote or rural geographic location, (ii) the patient travel to an
acceptable originating site such as a physician's office,
hospital or clinic, and (iii) the patient have an existing
relationship with their telehealth provider. CMS further
required that the provider be located at a hospital, clinic,
physician's office or other Medicare eligible place of
service. Telehealth services could not be rendered from a
federally qualified health center ("FQHC"), a rural
health clinic ("RHC") or any other location not
recognized by CMS for reimbursement purposes. Finally, not
all providers were authorized to render telehealth services and
many services were ineligible for reimbursement when delivered
using telehealth.
Similarly, in the state of New York, the list of providers
authorized to render health care services using telehealth was
severely limited and reimbursement was not on par with that of an
in-person office visit.
The data gathered during the pandemic demonstrated
overwhelming clinical and economic benefits from the increased
availability and use of telehealth during the pandemic. As a
result, significant changes to federal and state laws and
regulations may be expected. Proposals to eliminate the
geographic and originating site requirements are pending. Patients
will no longer need to undergo an in-person evaluation prior to
receiving a telehealth service. Group psychotherapy and substance
use disorder treatment will be a permanent addition to the list of
services eligible for reimbursement under Medicare, and
accordingly, the list of providers authorized to render telehealth
services will be greatly expanded. Finally, reimbursement for
telehealth visits will be on par with that for in-person
visits.
Notwithstanding these tremendous advancements in existing
laws, as the pandemic wanes and many of the laws that were relaxed
resume in full force and effect, significant legal challenges
remain as providers establish their telehealth practice protocols
going forward. Providers are encouraged to exercise caution and
consult competent counsel when necessary.
The most significant barriers to expanding a telehealth
practice are the current state licensure laws. During the
pandemic, many states waived their licensure requirements and
allowed providers duly licensed and in good standing to provide
services under their license in states in which they do not have a
license. These licensure requirements were waived to allow
duly licensed providers to assist in meeting patient need during a
surge without having to undergo a long arduous process of obtaining
a license in other jurisdictions. Once the public health
emergency is lifted, states will resume full enforcement of their
licensure laws, which may/may not include a process, short of a
full licensure application, for a provider to register as a
telehealth provider. The licensure laws for each state must be
carefully reviewed on a case by case basis to understand the risks
and benefits of such registration (if available) and avoid the
pitfalls of practicing in a state without a license. It is
important to recognize that when providing telehealth services, the
location of the patient dictates the state in which the provider
must have a license.
Other issues providers need to be aware of include the
following:
- Reimbursement: Providers should confirm that the payors with which they participate cover telehealth services, to what extent coverage is available, and whether there are specific criteria that must be met including, but not limited to, documentation, informed consent, and patient notifications to qualify for reimbursement.
- Prescribing: The laws governing prescribing via telehealth are, at a minimum, confusing. federal laws seem to suggest that a provider with authority to prescribe medications is permitted to prescribe when engaged in telemedicine, however, other federal laws limit the scope of telemedicine. State laws seem to suggest that a provider may prescribe if he/she/they obtain a "special registration" from the Attorney General, however, there are no regulations to describe this "special registration."
- Professional Liability Coverage: Providers should notify their professional liability insurance carrier of any services being provided by telehealth and inquire about risk management strategies to avoid unexpected increases in premium payments.
- State-Specific Standards of Care: Providers who are appropriately licensed and provide telehealth in multiple states should fully understand and comply with state-specific requirements pertaining to acceptable modalities, informed consent, standards of care, continuing medical education requirements and income tax implications.
- Privacy and Security: As the public health emergency declarations expire, the enforcement of applicable privacy and security requirements will resume in earnest. Be sure that the platform on which telehealth services are provided are compliant with applicable state and federal privacy and security requirements.
The evidence suggests that it is time to permanently
incorporate telehealth into our health care delivery system.
The past year afforded the health care industry to gather the
evidence necessary to identify best practices to allow telehealth
to serve a permanent and prevalent role in the delivery of health
care services to enhance access, assure continuity of care,
optimize patient outcomes and satisfaction, and reduce
overutilization and unnecessary costs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.