In the field of healthcare, technology provides many new opportunities to treat patients. With these new opportunities, however, come new compliance challenges. The term telemedicine generally refers to the use of technology that allows healthcare providers to treat patients from a distance. Such technologies include video conferences, telephone calls, text messages, and patient portals.
Although the practice is not new, advances in technology have made telemedicine a more attractive option to providers, insurers, and patients. Further, the COVID-19 pandemic has accelerated telemedicine’s use, and the federal government has (at least temporarily) lifted most telemedicine restrictions for its healthcare programs. Without an awareness of compliance issues and knowledge of how to navigate them, providers could be violating one or more of any given number of state and federal regulations. This article will discuss some of the more common issues providers face when delivering telemedicine, both during and after the pandemic.
Benefits of Telemedicine
The immediate benefit of telemedicine is obvious, eliminating the risk of spreading the coronavirus during in-person visits. However, there are many other benefits, including:
- Connecting patients and their providers over long distances;
- Cost savings;
- Quality care improvement;
- Availability of specialists and information not readily available via in-person visits;
- Access to healthcare for patients in rural areas; and
- Comfort and convenience.
Originating Site and Licensure
In telemedicine, the physical location of the patient being treated is perhaps the most important question. This location is known as the “originating site.”
The originating site is crucial because of licensure. To virtually treat a patient, a provider must have a license to practice medicine in the state the originating site is located. The provider’s physical location does not matter. Nor does it matter if the patient is a resident of one state and merely visiting another state for a brief period—only the originating site matters. While telemedicine itself is not high risk, providers must follow the state of the originating site’s licensing requirements, administer the same level of care as they would for in-person treatment, and document appropriately.
To ensure they meet these licensing requirements, providers should gather information about the traveling habits of each of their patients. This information includes:
- Does the patient live out of state?
- Does the patient relocate for part of the year?
- Does the patient have any upcoming travel plans?
- Does the patient travel extensively for work?
After gathering the above information, providers must review the requirements to obtain a license in the state where the originating site is located. Each state has different requirements for licensure. Fortunately, 29 states, the District of Columbia, and Guam have entered into the Interstate Medical Licensure Compact (IMLC). The IMLC makes the process of being licensed significantly easier by offering an “expedited path to licensure for qualified physicians who want to practice” in more than one state.
Providers only have to submit their credentials once to the IMLC, who then in turn submits the licensure information to member states. While providers still have to pay license fees in each state, each member state offers reciprocity to providers licensed in any other member state. This means that providers will not have to meet specific licensure requirements in each individual member state. However, even if providers are licensed in a certain state, they must still adhere to that state’s laws and regulations governing telemedicine.
Each state has its own laws and regulations regarding telemedicine that can differ considerably. This section discusses a few common examples.
Previous In-person Visit
Some states require an in-person visit prior to a provider treating a patient remotely. Others do not.
Synchronous Versus Asynchronous Visits
Synchronous visits refer to real-time patient visits, such as through Zoom meetings. Asynchronous visits refer to the opposite. The patient records their complaints and symptoms, allowing the provider to review the information at a later time. Some states only allow synchronous visits, while others allow both synchronous and asynchronous visits.
Generally, states require providers to gather certain consents from patients prior to treatment. However, each state can differ in their requirements for consents. For instance, California requires the referring provider to obtain consent. Kentucky, on the other hand, requires the treating provider to obtain consent. As such, telemedicine providers must be aware of the consent requirements in each state of the originating site.
Regarding state regulation, parity is an important concept. State law governs parity, and no two states’ parity laws are the same. Parity comes in two forms: treatment parity and cost parity.
Treatment parity refers to a telemedicine provider’s ability to provide the same treatment or prescribe the same type of drugs as an in-person provider. For example, some states allow telemedicine providers to prescribe narcotic drugs, while other states only allow in-person providers to prescribe these types of drugs.
Cost parity refers to the equal pay for equal treatment, regardless of whether treatment is remote or in-person. Many states have passed laws mandating cost parity to encourage the practice of telemedicine. However, some commentators say that, while these laws are well-intentioned, they conflict with one of telemedicine’s significant benefits—reducing healthcare costs. If providers are equally compensated regardless of whether a visit is in-person or remote, the cost of treatment remains the same. In the short term, while the COVID-19 pandemic continues, this concern is secondary. However, post-pandemic, state regulators will have to reconcile the need to expand access to telemedicine with the priority of reducing healthcare costs.
Regardless, providers should be aware of the state law governing both treatment parity and cost parity to ascertain if they can provide treatment in the state of the originating site and, if they can, the amount they will be compensated.
Federal Telemedicine Policy and Regulations
In addition to state regulations, additional federal regulations add further complexity to the practice of telemedicine. Before the outbreak of COVID-19, federal regulations, mainly through Medicare guidelines, placed several restrictions on telemedicine, often making the widespread practice unfeasible. But in the wake of the pandemic, most restrictions have been lifted, at least temporarily, resulting in telemedicine’s widespread expansion. This section explores a few major examples.
Previously, Medicare restricted the practice of telemedicine by only allowing patients to be treated at specific originating sites, which excluded the patients’ homes. These originating sites were typically located in designated rural areas. During the pandemic, this telemedicine restriction has been mostly lifted. Medicare beneficiaries can now visit with their providers for a variety of medical services. These include services from “physicians, nurse practitioners, physician assistants, nurse midwives, certified nurse anesthetists, clinical psychologists, clinical social workers, registered dietitians, and nutrition professionals.” In addition, Medicare (and some states) are recognizing out-of-state licenses for telemedicine providers.
The Department of Health and Human Services (HHS) is waiving “penalties for violations of the HIPAA Privacy, Security, and Breach Notification Rules that occur in the good faith provision of telemedicine during the COVID-19 nationwide public health emergency.”
Examples of violations that are not made in good faith include:
- Criminal acts;
- Selling patient data without their prior consent;
- Violating state ethical standards and laws; and
- The use of “public-facing remote communication products,” including TikTok, Facebook Live, Twitch, or Slack.
In addition, while HIPAA compliant software is encouraged, providers are permitted to use technology not usually allowed by HIPAA, including Apple FaceTime, Facebook Messenger video chat, and Google Hangouts.
The HHS does not address HIPAA compliance when treatment is offered other than through “emergency [telemedicine] services.” However, emergency telemedicine services is a broad definition, which includes every type of treatment providers think necessary, including treatment for COVID-19 symptoms and non-COVID-19 symptoms.
In addition to relaxing regulations, the federal government increased funding for new telemedicine initiatives. Congress designated $200 million of the $2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act to the Federal Communications Commission (FCC) to expand the practice of telemedicine. Providers can apply CARES Act funding toward medical and telecommunications technologies that enable remote care. Further, the federal government seems to be recognizing the need for telemedicine post-pandemic. An additional $100 million federal grant will expand internet connectivity for telemedicine providers over three years.
Have a Question about Telemedicine and COVID-19? Ask Our Experts!
Likely, post-pandemic, there will be no return to the status quo in the realm of healthcare. The response to COVID-19 has proven that telemedicine is feasible and beneficial for both patients and providers. It is unclear what the new normal will be for the healthcare industry. While many pre-pandemic regulations that restricted telemedicine practice are now subject to enforcement discretion, they have not been repealed.
As such, providers should partner with experts to plan the future of their practice. At Sumner Schick, our healthcare lawyers have the skill, experience, and expertise to advise you in all areas of your telemedicine practice, regardless of whether it is during the pandemic or after. Contact our healthcare attorneys and law firm for more information.