“Direct-to-consumer” telehealth[1] offerings have garnered significant attention in recent years, as patient-consumers seek real-time, on-demand interactions with their health care providers. This trend has been fueled by the recognition among patients, providers, and payers that telehealth can offer cost-efficient, high-quality care, though certain payers have continued to reimburse for telehealth services only under limited circumstances. COVID-19 has turned the telehealth landscape upside down as payers recognize the importance of the critical role telehealth plays in responding to the nation’s COVID-19 outbreak. In particular, telehealth enables healthcare professionals to continue to see existing patients remotely during this time, as well as provide much needed support to the hardest hit areas of the country from a distance (to the extent permitted by state licensing laws). While some “direct-to-consumer” companies and large hospital systems have leveraged telehealth for years, unprecedented numbers of medical practices, solo practitioners, and others are now relying upon remote professional services for the first time. Given that so many providers are currently transitioning to remote practices, this article provides an overview of telehealth along with practical tips for operating a compliant remote practice during this time. Telehealth Overview There is no standardized definition of “telehealth.” By way of example, California law defines telehealth as the “mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care while the patient is at the originating site and the health care provider is at a distant site.”[2] California’s definition of telehealth includes both synchronous interactions (meaning real time interaction between patient and provider) and asynchronous (meaning store and forward transfers of patient information). Not unlike the delivery of traditional in-person professional services, telehealth requires healthcare professionals follow the accepted standards of practice and use their professional judgment to determine whether a particular health care service should be provided by telehealth. Historically, several barriers have inhibited the uptake of telehealth use, both by patients and providers, including the general lack of coverage and reimbursement both by private and public payers, as well as the ability to prescribe both non-controlled and controlled drugs requiring a prescription. Additional Flexibility in Response to COVID-19 In response to calls for flexibility and broadening access to telehealth services during the COVID-19 public health emergency, certain federal and state laws and regulations have been relaxed and payment policies expanded to encourage healthcare professionals to shift to remote practice. For example, CMS issued a waiver relaxing the “originating site” requirement for Medicare fee-for-service (FFS) beneficiaries, meaning that telehealth consultations between a provider and a FFS beneficiary may now take place while the patient is in his or her home or at a healthcare facility, regardless of whether the patient is located in a rural area. Moreover, CMS clarified that patients can use personal smart phones to receive treatment via telehealth as long as the communication is synchronous. To assist in this transition, a number of the otherwise existing restrictions or limitations have been lifted during this current state of emergency. A summary of key developments follows: Practical Tips to Operate a Compliant Remote Practice. Utilization of telehealth throughout the United States has skyrocketed due to COVID-19. For those clinicians and facilities treating patients via telehealth for the first time, there are a range of legal issues to consider, the most important of which are outlined below. Conclusion. Telehealth laws and reimbursement requirements have evolved slowly throughout the United States since Congress established the parameters surrounding “Medicare telehealth services” in 1997. That landscape has evolved rapidly in response to COVID-19, but it is important to understand that most of these changes are only temporary. When the public health emergency ends, HHS and state governments may return to substantially more restrictive rules. Additionally, it is important to note that regulators’ announcements that they will be exercising enforcement discretion are not the same as a complete waiver. Providers should continue to monitor these developments – particularly when measures adding regulatory flexibility terminate – closely. Moreover, before providing services in reliance upon waivers or other government announcements described above, providers are advised to read such policies in full, as many require providers to meet specific technical requirements. HLB’s Coronavirus Task Force is monitoring developments closely. For federal and state resources on COVID-19, please refer to our COVID-19 Resource Page. For further information, please contact Amy Joseph and Jeremy Sherer in Boston, Katrina Pagonis or Andrea Frey in San Francisco, Nina Adatia Marsden or Alicia Macklin in Los Angeles, or your regular Hooper, Lundy & Bookman contact. _________________________________________ [1] As discussed herein, there is no industry-standardized definition of “telehealth.” This article refers to “telehealth” both as the services that providers render utilizing telecommunications technology and the technology itself.
[2] Cal. Bus. & Prof. Code, Sec. 2290.5.
[3] “Telehealth services” for purposes of the Medicare program has a specific defined meaning which we do not address herein. For purposes of this article, “telehealth services” is used more broadly throughout the article to reflect the more common understanding of the term.
[4] Cal. Bus. & Prof. Code, Sec. 2290.5.
[5] Ar. Code Sec. 17-92-1003(14)(B).
[6] Medical Board of California, “Practicing Medicine Through Telehealth Technology,” Cal. Bus. and Prof. Code Sec. 2290.5(b).Professional
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