What the Emergency Telehealth Regulations Mean for Your Practice During COVID-19

by 
Dr. Murdoc Khalghi
What the Emergency Telehealth Regulations Mean for Your Practice During COVID-19

In the midst of the COVID-19 pandemic, telehealth is a non-negotiable. Between moving your practice virtual, taking care of your family, and stocking up on essentials, we know you’re insanely busy! Here’s a quick guide to the recent telehealth changes.

Things to take note of before we get started:

  • This content is NOT legal or medical advice.
  • There’s still a lot of grey zone for all these recent regulation changes, especially practicing across state lines. (State law continues to govern whether a provider is authorized to provide professional services in that state without holding an active license from that state’s medical board.)
  • Many integrative practitioner types such as naturopathic doctors, acupuncturists, chiropractors, and more are not listed explicitly as practitioner types covered or affected by these changes. (Unfortunately.)

Table of contents:

  • Part 1: A Silver Lining for Telehealth
  • Part 2: The Emergency Telehealth Regulation Changes
  • Part 3: Emergency Telehealth Regulation FAQ
  • Part 4: Other Helpful Resources
  • Part 5: Sources

Part 1: A Silver Lining for Telehealth

While what COVID-19 is doing to society is tragic, there are the rare silver linings.  Pollution and accidents have decreased from less transportation, and while the seasonal flu is much more innocuous than COVID-19, the many protective measures have at least mitigated that virus's typical effects.  While the harm done does not make these temporary or any other positive changes worthwhile, some of the impact may have lasting positive effects, including the sudden motivation to advance telehealth.  

The ability for patients to be seen virtually has been available for more than a decade, and has advanced significantly during that time.  After being first rolled out by private companies, most major insurers and health systems have a telehealth component.  What has significantly limited investment in this component were various regulatory policies focused on the delivery and payment of telehealth.  Over the last few weeks, we have seen an evolution in these rules faster than any other time in telehealth's existence.  Regulatory and payment bodies now understand the value of keeping patients out of health care institutions where the risk of exposure to COVID-19 is increased, as well as saving health care capacity, including space, for the potential rush of COVID-19 patients.  

Prior to recent weeks, telehealth was severely limited by geography, even though lack of physical boundaries has been one of telehealth's advantages.  Since many health professions are licensed by the state, practitioners were limited to performing telehealth practice in the state where they are licensed.  While some states had started to liberalize these rules over the last few years, this process had been slow and fragmented.  Now, such restrictions have been lifted for an indeterminate amount of time to give practitioners the flexibility to support as many patients as possible.

In addition, payment models for telehealth have often been a limiting factor as well, with either non-reimbursement or significantly lower reimbursement for telehealth visits.  Again in the last few weeks the primary payor of health services, CMS, has liberalized its policy to reimburse telehealth visits adequately, with many private payors following.  Finally, the administration has made clear that while practitioners and health care organizations still need to follow policies such as HIPAA, identifying and punishing violators of such policy is not their current priority.

The effect of these changes is already being seen, with many practitioners' significantly increasing the portion of their practice that is delivered via telehealth.  This will result in fewer exposures and more reserve capacity for those with the greatest needs.  The interesting question becomes, as society becomes comfortable with this delivery method, and the flexibility and cost advantages become apparent, will some of these changes become long-term?  While that is difficult to say during these rapidly changing times, what is clear is telehealth will continue to grow as a trend, with continued innovation in technology allowing for more advanced assessment from home.  COVID-19 may have accelerated this change, thereby offering some persistent benefits for greater telehealth access and delivery.  While this pandemic is highly unfortunate for everyone, perhaps having future more flexible and cost-effective options for health care delivery may be one small silver lining.  

Part 2: Emergency Telehealth Regulation Changes

There are three big changes in regulation around telehealth. Frankly, much of this might not be relevant for integrative and functional practitioners since many of your practices are cash pay. However, it’s useful and important to know these changes as they will likely have major downstream effects for the entire healthcare industry in the coming years.

The 3 Big Telehealth Emergency Regulation Updates

  1. Medicare, with other payors and states following, will pay for telehealth services at the same rate as in-person visits.
  2. Telemedicine practitioners have more leeway to practice across state lines.
  3. HIPAA penalties are not a focus during COVID-19 pandemic.

Part 3: Emergency Telehealth Regulation FAQ

When did medicare start covering telehealth visits?

March 6, 2020.

“Medicare can pay for office, hospital, and other visits furnished via telehealth across the country and including in patient’s places of residence starting March 6, 2020.” (1)

What types of providers can get coverage?

These practitioner types were explicitly stated.  

“Distant site practitioners who can furnish and get payment for covered telehealth services (subject to state law) can include physicians, nurse practitioners, physician assistants, nurse midwives, certified nurse anesthetists, clinical psychologists, clinical social workers, registered dietitians, and nutrition professionals.” (1)

What providers are not covered?

Practitioners not explicitly covered include: Natruopathic Doctors, licensed chiropractors, licensed acupuncturists, physical therapists and more.  

What types of visits are covered?

Three types of visits are covered. Medicare telehealth visits, virtual check-ins and e-visits. (1) See the CMS explanation for full details, however a broad scope of services are covered - from full “office” visits to short patient initiated phone calls to even online chat through a patient portal.  

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Can I provide telehealth care to new patient or existing patients only?

Yes, you can provide telehealth care to new patients. However, if you are looking to get reimbursed, only “telehealth visits” — full video & audio “office” visits, count for new patients. Virtual check-ins and e-visits are only for established patients.

“HHS will not conduct audits to ensure that such a prior relationship existed for claims submitted during this public health emergency.” (1)

Do I need a HIPAA compliant software to do video calls with patients?

No, during this pandemic, you do not. However, while penalties are not being enforced for using non-compliant software, it is always a good idea to use a platform with high privacy standards.

“OCR will exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.  This notification is effective immediately.” (3)

“A covered health care provider that wants to use audio or video communication technology to provide telehealth to patients during the COVID-19 nationwide public health emergency can use any non-public facing remote communication product that is available to communicate with patients.” (3)

What platforms are approved to use for telehealth?

You can use any 1:1 platform (but not a “public facing” platform like TikTok, and yes, our government website really does cite TikTok!) to connect with your patients, including FaceTime, Google Hangouts & more.

“Under this Notice, covered health care providers may use popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, or Skype…” (3)

What if I want to use a HIPAA Compliant Platform?

Here’s some softwares you can use that state that they are HIPAA compliant.

  • Skype for Business / Microsoft Teams
  • Updox
  • VSee
  • Zoom for Healthcare
  • Doxy.me
  • Google G Suite Hangouts Meet
  • Cisco Webex Meetings / Webex Teams
  • Amazon Chime
  • GoToMeeting
  • Spruce Health Care Messenger

Does this only apply for COVID related visits?

No, these new liberal regulations apply for other medical conditions as well.

“Likewise, a covered health care provider may provide similar telehealth services in the exercise of their professional judgment to assess or treat any other medical condition, even if not related to COVID-19, such as a sprained ankle, dental consultation or psychological evaluation, or other conditions.” (1)

How long will these new emergency rules apply?

We don’t know yet - it’s officially stated as “During the COVID-19 national emergency”. It’s best to stay updated. HIPAA is governed by the Office for Civil Rights (OCR) at the Department of Health and Human Services (HHS).

“OCR will exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.  This notification is effective immediately.” (3)

Any questions on practicing amidst COVID? Feel free to reach out! Email our founder, Tara at tarav@rupahealth.com

If you’re looking to move your practice virtual, here’s our guide to Starting A Telehealth Practice in 24 Hours.

Part 4: Other Helpful Resources

Part 5: Sources

  1. https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet
  2. https://mhealthintelligence.com/news/feds-ok-interstate-licensing-paving-way-for-telehealth-expansion
  3. https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html
  4. https://medcitynews.com/2020/03/cms-shares-specifics-on-sweeping-medicare-telehealth-expansion/
  5. https://www.ama-assn.org/delivering-care/public-health/cms-payment-policies-regulatory-flexibilities-during-covid-19
  6. https://www.modernhealthcare.com/medicare/cms-expands-medicare-telehealth-services-fight-covid-19
  7. https://mhealthintelligence.com/news/feds-ok-interstate-licensing-paving-way-for-telehealth-expansion
  8. https://www.marketplace.org/2020/03/24/covid-19-nurses-doctors-licenses-states/
  9. https://www.jdsupra.com/legalnews/hhs-and-states-relax-telehealth-83893/
  10. https://www.natlawreview.com/article/ocr-enforcement-waivers-certain-hipaa-requirements-furtherance-telehealth-during
  11. https://healthitsecurity.com/news/ocr-clarifies-hipaa-liability-on-telehealth-use-during-covid-19


References

Dr. Murdoc Khalghi
MD
Website
Emergency Medicine Physician, Head of Medical at Rupa Health, UC Berkeley & Columbia University Alum.
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