Because of the COVID 19 pandemic, federal and state governments have relaxed some regulatory requirements that may permit health and wellness practitioners to implement their business plans in ways that would not have been possible prior to the pandemic. We discuss some of these changes, below. Please note that regulatory changes are evolving quickly. Thus, more relevant changes may occur after the writing of this blog.
Relaxation of Virtual Platforms under HIPAA
The federal Department of Health and Human Services (HHS) Office of Civil Rights (OCR) has relaxed the standards relating to use of remote communications technologies. OCR will exercise enforcement discretion against health care providers who provide telehealth services in good faith during the COVID 19 public health emergency. This means that providers are able to use any non-public facing remote communication product that is available to communicate with patients. Such products may include Apple FaceTime, Facebook Messenger video chat, Google Hangouts video or Skype, even though these platforms may not necessarily be HIPAA compliant. Providers may use these products regardless of whether the telehealth service is related to the diagnosis and treatment of health conditions related to COVID 19.
Providers who use these platforms should notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications.
Products such as Facebook Live, Twitch, TikTok and similar video communication applications should not be used, however, as those products are public facing.
Relaxation of Medicare Rules Involving Use of Telehealth
On March 6, 2020, the Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020 became law. P.L. No. 116-123. Part of that law includes the Telehealth Services During Certain Emergency Periods Act of 2020, which grants HHS waiver authority under section 1135 of the Social Security Act to alter Medicare standards for covering telehealth services. P.L. No. 116-123, Div. B, §§ 101 and 102.
On March 17, the Centers for Medicare and Medicaid Services (CMS) issued a fact sheet explaining the actions it has taken under its new 1135 waiver authority. Some of these actions include:
Paying for office, hospital and other visits furnished via telehealth across the United States and including a patient’s place of residence starting March 6, 2020. A range of providers, such as doctors, nurse practitioners, clinical psychologists and licensed clinical social workers, can offer telehealth to their patients.
CMS will consider these visits the same as in-person visits and will pay for telehealth visits at the same rate as in-person visits.
Providers may reduce or waive cost-sharing for telehealth visits paid by federal healthcare programs.
HHS will not conduct audits to ensure that a prior established relationship exists for claims submitted during the public health emergency.
Providers must use an interactive audio and video telecommunications system that permits real-time communication between the provider and patient at home.
For virtual check-ins, patients may use telephones or exchange information through video or image and Medicare will pay for these services. This effectively means that patients may use their smart phones for these visits. See chart below.
For practices that have an established relationship with a patient, patients can use online patient portals to conduct e-visits with their provider and Medicare will pay for those visits. See chart below.
CMS created a chart summarizing how it would pay for these telehealth visits, which we reproduce, below.
Relaxation of Medical Licensing Standards for Telehealth Services.
On March 13, 2020, as part of its 1135 waiver, HHS lifted the requirements under Medicare and Medicaid that require health care professionals hold licenses in each state in which they provide services. Specifically, the waiver lifts:
Requirements that physicians or other health care professionals hold licenses in the State in which they provide services, if they have an equivalent license from another State (and are not affirmatively barred from practice in that State or any State a part of which is included in the emergency area).
This means that Medicare will not check whether a provider is properly licensed in a state as long as the provider is properly licensed in another state, and not barred to practice in that State. The waiver allows for State Medicaid programs to also relax its licensing requirements, but whether states do so will be on a case-by-case basis.
Some states have also lifted their licensing requirements to allow for providers licensed in other states to practice in their state. States who lift licensing requirements may allow for cash-based practitioners to practice telehealth in states in which they do not hold a license. However, a state-by-state analysis would need to be conducted to confirm what the new waivers would permit. For example, North Carolina has temporarily waived licensure requirements for health care and behavioral health care personnel who are licensed in another state, territory or the District of Columbia to provide health care services within the Emergency Area. The Federation of State Medical Boards has created a table listing current state actions regarding licensure waivers.