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The legal ramifications of rapidly scaling telehealth (Q&A) – MedCity News


The public health crisis that is Covid-19 has forced healthcare providers to rapidly scale telemedicine in an unprecedented move to protect their patients. The government has aided reimbursement for telehealth services through the CARES Act. But what are some of the short- and long-term consequences of these moves, and what does the future portend? In a Q&A, Fredrikson & Byron Shareholders Ryan Johnson and Katherine Ilten share their insights.

What were some of the legal barriers to telemedicine expansion before the pandemic? It seems like CMS has been growing more open to telemedicine expansion for Medicare Advantage members, underserved populations in rural areas, and digital diabetes management.

Katherine Ilten

Prior to COVID-19, there was only limited government program reimbursement for telehealth — i.e., only patients located in facilities and in rural areas could receive telehealth services.  CMS was warming to the idea, adding more codes to the telehealth list every year, but at a slow rate.  The other legal barrier prior to the pandemic was state professional licensing laws that, in general, largely required the professional to be licensed in the state where the patient was located, even if the services were provided by an out-of-state licensed professional. CMS has moved rapidly during the pandemic to expand telehealth coverage, and the proposed 2021 Medicare physician fee schedule indicates that much of that expansion (although not all) will be permanent.  Unfortunately, state licensure laws are still, literally, all over the map. There is not yet national legislation — or a U.S. Supreme Court decision — making it possible for professionals to perform telehealth services across state lines without complying with local licensure laws.

Since April 2020, CMS has added 135 allowable services, more than doubling the number of services that beneficiaries could receive via telehealth. Does the CARES Act override the need for multistate licensing for physicians to practice telemedicine across state borders? Where does that debate currently stand?

Unfortunately (at least in our opinion), the CARES Act does not fix the issue of physician/professional licensure laws varying by state. Unless Congress passes a national uniform licensure law (or a state licensure law is successfully challenged at the U.S. Supreme Court), the licensure laws of each state will vary with respect to whether a professional can provide services via telehealth to a patient in that state.

On reimbursement, Medicare ensured that healthcare providers were paid for certain telehealth services at the same payment rate as they would receive for in-person services. Additionally, CMS is allowing telehealth technology to fulfill many requirements for clinicians to see their patients face-to-face in different healthcare settings, including inpatient rehabilitation facilities, hospice, and home health. How do you anticipate this impacting telehealth reimbursement in a post-pandemic U.S.? 

Ryan Johnson

The CARES Act temporarily removed the geographic and site-of-service originating site restrictions for Medicare telehealth services.  In its proposed rule for 2021, Medicare did not address the originating site restrictions because they are statutory.  However, CMS did note that making these flexibilities permanent requires an act of Congress. 

Commercial payers could certainly move faster than Medicare, and many states have parity laws that require a commercial insurer to cover a service that is performed by telehealth if the service would have been covered in person. 

The Department of Health and Human Services Office of Civil Rights announced that it would exercise enforcement discretion and waive penalties for HIPAA violations against healthcare providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the emergency. CMS also eliminated these barriers by paying for certain telephone evaluation and management visits and behavioral health services, and paying practitioners at the same rate as similar in-person services. Has there been much debate among lawyers/lawmakers/policy makers about the impact of these policies regarding HIPAA? Are you seeing any legal action or do you anticipate any legal action over these issues in the short and long term?

We certainly haven’t seen enforcement against providers using these everyday communications technologies.  However, we don’t expect that providers will be able to rely on the relaxed guidance forever.  Once the pandemic eases, we suspect OCR will make a statement that it expects covered entities to go back to the standard security risk assessment and security protection implementation process for those technologies.

What kind of short- and long-term impact are these changes likely to have on how care is reimbursed in the future?

Prior to the COVID-19 pandemic, CMS significantly limited reimbursement for telehealth services, paying only for telehealth services provided by certain providers to rural patients receiving care in a physician’s office, a hospital, or a skilled nursing facility.  In response to the pandemic, CMS lifted many of these restrictions and telehealth exploded across the country.  Whether any of these changes will become permanent remains to be seen, but it seems likely that CMS and other payers will continue supporting the expansion of telehealth by reimbursing for services with fewer geographic restrictions and by covering services provided by a variety of health care professionals, including behavioral health providers, physical therapists, and occupational therapists.   

Some media reports call for a reassessment of the Medicare payment rates for telehealth services. Where do you stand on that? What is your take? 

There should be no difference in reimbursement for services that can be provided in-person or via telehealth at the same level of quality.  

Hospitals have had to rapidly scale telehealth services across their physician practices. Has this situation created any ethical challenges in areas such as negotiating tech vendor contracts, malpractice concerns, etc.?  

Health care facilities and licensed professionals have an obligation to make sure telehealth services are provided consistent with the standard of care, and we suspect the vast majority of health care providers have done a good job fulfilling this obligation. With respect to technology vendor contracts, we wonder whether certain contract terms were thoroughly reviewed and negotiated because of the pressure to get contracts in place during the pandemic (including, for example, provisions governing intellectual property, data rights, liability allocation, etc.).

What are some of the medical ethics issues that the expansion of telehealth services is forcing hospitals and physician groups to confront? Any unintended consequences?

The rapid adoption of telehealth is forcing health care providers to consider how to best fulfill their long-standing professional and legal duties to patients, including those relating to informed consent, confidentiality, privacy and security, and others central to the doctor-patient relationship.  Again, for the most part, we think most hospitals and physicians are doing a good job working through these issues, but they will inevitably be forced to continue addressing these issues as technology evolves and regulations change.

Picture: nicescene, Getty Images



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