How has COVID-19 Affected Laws Regarding Telemedicine?

It's easier to provide and access, but lighter restrictions may not last

As healthcare providers across the country grapple with surges in demand and hospital beds fill, more and more patients are seeing their doctors and receiving care through video conferencing, telephone visits or even online questionnaires.

And while the pandemic has lowered some of the barriers for providers to establish or expand their telemedicine capabilities, there are important legal issues to be aware of. “A lot has changed on the legal front,” says Jeremy D. Sherer, a digital health attorney at Hooper, Lundy and Bookman in Boston. “There are a number of waivers and exceptions in place. Flexibility of all types is being granted to providers so that they can utilize telehealth, because of how important it is to responding to this public health emergency.”

Sherer says he’s been spending a lot of time lately helping providers as well as telehealth service platforms navigate the changing laws.

Making Telehealth Accessible

Healthcare providers who are using telehealth to deliver medical services to patients need to abide by state and federal laws. But, at least during the public health emergency, some requirements are being waived. For example:

  • Secure platforms—The biggest difference between telehealth and traditional healthcare is simple: the use of telecommunications technology. “It’s really important to make sure that you’re using a secure platform,” Sherer says. “And that you enter into a business associate agreement so that you’re protected under federal privacy laws if there’s a data breach or a privacy issue.” 

    However, during the public health emergency, “the Department of Health and Human Services has announced that they will not be enforcing their traditional rules which require you to use a secure platform,” Sherer continues. That means providers are–for now–allowed to use platforms such as Zoom, Skype or FaceTime.

  • Licensure—“Generally, in order to treat a patient via telehealth, you need to be licensed in the state where the patient is located,” Sherer says. “Because every state regulates medicine itself, it’s a challenge to be licensed in all 50 states. … A lot of states have waived those requirements for the duration of the public health emergency.” 
  • Insurance coverage—Some states have added rules to ensure patients have better access to telehealth services. “Sometimes [commercial] plans will only pay 50 cents on the dollar for services that are provided via telehealth as opposed to what you’re going to get when you’re providing the services in person,” Sherer says. “Right now, a number of states are requiring commercial payers to observe payment parity. Staying home is among the most effective ways to combat this pandemic, and encouraging patients and providers alike to utilize telehealth is a great way to help ensure folks stay home.”

Medicare

Paying for telehealth has, historically, been a concern. As a major source of income for providers, Medicare plays a major role. And, without changes, Medicare’s standards can be a barrier for telehealth providers. But, during the pandemic, Medicare is waiving some of its requirements so that providers can get paid for telehealth, making providers and their facilities much more likely to offer telehealth as an option for patients.

One waiver has to do with the patient’s location. Typically, Medicare would only reimburse telehealth services if the patent was treated in a traditional brick-and-mortar facility located in a rural area. “But in response to this public health emergency and this pandemic, CMS has waived the originating site requirements,” Sherer says. “So patients can receive treatment from anywhere, including from the home, as Medicare beneficiaries.”

Another aspect making telehealth more accessible for Medicare participants is the number of services covered. CMS maintains a list of approved telehealth services. “Now, during this public health emergency, they haven’t waived them but they have added 80 new codes. And that almost doubles the services that can be provided to Medicare beneficiaries via telehealth,” Sherer says.

Good News, But Also a Caveat

It’s becoming easier to implement and get access to telehealth, but there is one word of caution providers should be aware of. “The laws and the regulation of telehealth have advanced decades in the past few weeks,” Sherer says. “It has just been an incredible amount of change. But all of it is coming with the asterisk that it is for the duration of the public health emergency.”

He continues: “Once the public health emergency ends, some of the flexibilities that they’ve gotten are going to go away. And it’s going to be really important to monitor what individual state regulators are doing, what the Department of Health and Human Services is doing, what the Centers for Medicare and Medicaid Services within the Department of Health and Human Services is doing, just to ensure that providers don’t get caught thinking that they are providing services in a legal and compliant way after the end of the public health emergency. Because the current landscape is quite different than what it was two months ago.”


For information on more legal questions regarding COVID-19, visit FindLaw’s legal center, or find more articles on superlawyers.com/articles (search for COVID-19).

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