April 17, 2020

COVID-19 Brings Telehealth Services in the Spotlight

Point by Point

This episode of Point By Point was produced prior to the combination of Waller and Holland & Knight.

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Morgan Ribeiro, host: Healthcare in the United States has never been easy. But with the coronavirus pandemic, a visit to the doctor's office could be risky, or not an option altogether. This crisis has become a moment for telehealth, which connects patients to doctors wherever they may be. Although telehealth has been around for a while, recent updates to regulations and a surge in demand has made it the easiest way to deliver care.

On today's episode of PointByPoint, I'm joined by Beth Pitman and Nathan Kottkamp. Beth and Nathan are both partners in our Healthcare Compliance and Operations practice group. We work with healthcare providers and healthcare IT companies on a variety of compliance and regulatory matters, particularly around patient privacy, data security and telehealth.

Beth and Nathan, we’re really looking forward to talking to you today. In a short period of time, the COVID-19 pandemic has impacted a variety of industries, but most of all healthcare providers. Can you first speak to the drivers for the shifts in care delivery models and why telehealth has really taken off in the last couple weeks?

Beth: Sure, Morgan. Thank you for having us on the show today. There are a few drivers in the push towards telehealth. The first is in the midst the coronavirus outbreak, the Centers for Medicaid and Medicare Services and the Office of Civil Rights has taken steps to make healthcare services more accessible for telehealth, particularly for those who are at high risk of complications from the virus. In addition, there are a number of care settings that are limiting or altogether closing access to in-person services. In order for those providers to continue to see patients, they’re now shifting into more of a telehealth setting. Just think of dermatology, dentistry, other areas of healthcare that are able to carry out much of their work through a telehealth platform.

Morgan: So you mentioned certain patients who are at risk, or maybe have high risk of complications. So maybe, you know, patients with diabetes, heart disease, how are patients, maybe they don't have coronavirus, but just those patients that are, you know, dealing with chronic diseases, how would you say those in particular are dealing with this via telehealth.

Beth: Sure, for physicians that treat patients that have chronic illnesses are able to do remote patient monitoring through these blood pressure cuffs or other types of devices that help giving information to them. They can call the patients with an audio visit. An audio visual visit can meet with them and determine how they're complying with the requirements. Are they taking their medications? Are they eating the right kind of foods? Are they getting out and exercising like they're supposed to? It helps significantly in patient compliance with regard to chronic care management.

Morgan: So, Nathan, I'm curious, are you seeing that there are certain areas of healthcare in particular that are most ideal for telehealth or certain clients that are asking you the most questions about this right now?

Nathan: I'd say the obvious one is mental health services. Ordinarily they're delivered in person, but it's an easy sort of thing to do. It doesn't have limitations of having to be concerned about are the diagnostic elements going to be good enough. If you're doing dermatology over video, for example, those challenges don't exist [for mental health services]. I think anything that involves regular interventions with physicians where you are simply checking in, those are going to be the ones where it’s going to help a lot.

Morgan: So, I’m curious, Beth, you mentioned earlier CMS, The Centers for Medicare and Medicaid Services, are there particular regulations that expand the use of telehealth that providers should be aware of?

Beth: Yes, under CMS, under the Medicare rules, they have expanded the definition of telehealth to allow delivery of services to a patient who's at their home, and they have also expanded it beyond the rural areas where originally it was limited to a certain geographic area but now is expanded to all healthcare providers and in any geographic area. The main advantage is that they can provide services to a patient as they shelter at home.

Morgan: Great. Nathan, do you have anything noteworthy that, you know, in terms of reimbursement, if I'm a healthcare provider, there are advantages for us if we want to do this. This is going to provide an additional revenue stream where otherwise our practice may be limited or completely cut off and the number of patients that we can see right now.

Nathan: Oh, absolutely, obviously, cash flow is a major issue for providers across the country. There's obviously a lag time in providing services and getting paid for it. But keeping the pipeline of patients and reimbursement open is really an important bridge from where we are today and where we need to get to once we're out of this situation. So I think we'll probably over time, too, see some evolution in the way in which telehealth is reimbursed. Obviously, we're not there yet, but that's got to be a place we're gonna be moving to after this situation.

Beth: And Morgan, we've also seen not only has CMS expanded telehealth reimbursement, but most of the commercial players have followed suit and have also made adjustments to increase their reimbursements for telehealth.

Nathan: One other thing to keep in mind is that these expansions, these measures, at least of the moment are temporary. So just be mindful when these are cut off, there may be some adjustments that need to be made.

Beth: One thing, too, is that we've had a lot of questions about how to code for the Medicare billing, and CMS has been changing that. And so as they have made the changes, they've also made it clear that if claims have been submitted under their prior guidance, those will be paid and there should not be a delay. But they have specific coding requirements for telehealth during this emergency.

Morgan: Okay, that all makes sense, and it seems like a good option, obviously, for those that are either faced with coronavirus or those that are sheltering in place. And it's a great option for these physician practices, in particular. If I'm a provider, what are the key pieces of information that I should be aware of in terms of compliance and reimbursement changes? You've obviously noted a few of those, but Nathan I'll start with you. Is there anything you know, as a provider, that I should be aware of?

Nathan: Well, I think first and foremost is to recognize that the expansion of telehealth is not a free for all. You still need to be worried about all the ordinary things that you worry about in medical practice. Good documentation, patient confidentiality and privacy. These are not consults you want to do it in your kitchen while your kids are doing their homework with remote schooling and things like that. I also think it's a good idea when you're talking with patients and there is that element of diagnostic component to it, to let patients understand that there may be limitations. It's not the same as being able to lay hands on a patient, and helping them understand that I think can go a long way in not only assuring the patient but also helping with some liability risk issues.

Morgan: Anything from a licensure or insurance perspective?

Nathan: Yeah, licensure is a big deal when it comes to telehealth and telemedicine. Right now, the licensure is handled at the state level. I don’t see any change coming to that anytime soon. And there is some suspension of some of the rules, but on the backside of when this crisis is over, certain states require registrations of physicians in other states. Some have specific rules as to where telemedicine can be performed either on the patient end or the provider end. Again, I think we're going to see changes in all those, but once these rules are lifted, at least for an initial period time, we're gonna have to go back to the existing rules that are on the books.

Beth: That's right. For anything that's not Medicare reimbursed, the state rules would definitely govern what you can do or can't do with telehealth. And many states do require HIPAA-compliant technology, so even though Medicare has made some waivers in that regard, they still need to, you know, check the state law and make sure that the technology that's being used does meet the requirements.

Nathan: And on the licensure front, there are several states that are waving some of their licensure requirements so you don't have to go through the Board of Medicine. For example, if you find a patient you can help, and you just so sort of go in and do it during the period of emergency declaration, they're going to allow that. But obviously once the emergency is finished, then you'd have to register for licensure for telemedicine, things like that.

Morgan: Are there any areas in particular where you're seeing there is some confusion around, you know, codes that look like they’re on the list and are able to provide distant-site providers? I’m curious if there's any confusion that's out there right now that is worth clearing up.

Beth: Sure, there’s some confusion about the place of service. Usually would have a certain place of service you had to use for telehealth, but what they've done now is they’ve changed that so that the place of service that you use to code in is the normal place of service of where you provide the face to face visit. And then they have a specific number that you attached to that which is 95 and that does, then, explain that it is telehealth for this emergency-specific event.

Nathan: One of the other areas of confusion, and sort of curiosity, is dental practices. Dentists can still do some telehealth. It's pretty amazing to think that using a phone and sticking the camera in your mouth would be effective, but that does exist. Obviously, it has limitations, but I've heard some chatter about that.

Beth: Oh yeah, we've had a lot of dental clients with questions about that, and that's definitely a dental board or state-specific issue. Some of the states have specific dental tele-dentistry laws, but not many. Others have telehealth laws that include dentists, and then some, like Texas, for instance, don't allow it at all. So that's definitely a state-specific question, and it's confusing for the dentists.

Morgan: That definitely makes sense. What about physical therapy or occupational therapy? It seems like there's been some confusion around that as well.

Beth: There has. There are codes for that, however, at this time, CMS does not include physical therapists and occupational therapists in their definition of telehealth-qualified providers. But, some states do for Medicaid and most of the commercial payers also do provide those services and do reimburse for them.

Morgan: So do you all think that the shift towards telehealth is here to stay? That some of these changes will stay in place for a while, or how will things look once the pandemic has ended?

Beth: I hope so. I think it's really a game-changer for a lot of physicians because they can provide services to their clients that wouldn't require the patient to come into the office normally, and it frees up some additional space for them so they can use exam rooms for appointments that require face to face visits. And that really gives them an additional reimbursement avenue.

Nathan: I couldn't agree more. I think what we're probably going to see is a return to the previous arrangements with respect to telehealth for a very short period of time, and then everyone's gonna realize how good it was, all things considered, with respect to this particular element of healthcare delivery in this current time. And then I think we're gonna see state laws loosening, federal laws gonna loosen as well. I think the parts that I'm gonna be watching that are interesting is some of the turf protection that I'm sure that we're gonna be seeing. Do we want providers from other states coming in and providing care for our patients? Those also raise some ethical questions which is, you know, were you caring for those patients right now anyway? So are they really stealing patients? But those are things that are sort of social questions we're gonna have to be answering. But I do think this whole telehealth initiative has the potential to really provide some necessary services in underserved communities.

Morgan: Both of you have mentioned some state specific-differences. I know Beth, you were referencing earlier just on the dental front, you know, some of the differences on the state by state level. Any other state-specific differences that may be noteworthy for our listeners?

Beth: Sure, many of the states have specific requirements about the type of telehealth technology that could be used or the type of telehealth services. Some states will allow audio only. Some require audiovisual, and some do also allow where the patient can take a photograph, send it to the provider, and the provider can review that at a later time. So that does vary from state to state about the type of technology and telehealth services that could be provided.

Nathan: The other thing that differs from state to state is the requirements for an initial patient relationship. There are certain states that require telehealth to be conducted only after a physician has met with the patient for the first time in person. So that's obviously a big deal as we're trying to roll this out. The other thing that comes into the play, too, is that various states have different rules with respect to their controlled substances rules and what could be prescribed by telemedicine. So again, I suspect we'll see more harmony of that as things go forward, but right now, it really is a state by state thing that you need to be careful about what it is you're prescribing.

Beth: That remind me, there's one other thing: patient consent. Many of the states do require that the patient consent these to telehealth, and the OCR enforcement discretion does advise the providers to notify the patients prior to the use of telehealth that they will be using telehealth and that there's a risk of releasing information or it may not be as private as it would in a face to face conversation, so that is something that needs to be included in the services, is to make sure they have an appropriately designed consent form for the patients to execute.

Morgan: So, that's interesting. Have the have the patient privacy rules loosened as a result of the regulations passed recently? What changes are happening on the HIPAA front that you would want to note.

Nathan: I'll start with that. I think the biggest change right now is enforcement discretion loosening of the rules with respect to the specific technology. There is technology that's recognized as being HIPAA compliant and, more importantly, several technologies that are recognized by the OCR as not being HIPAA compliant, but at least for the moment, with certain exceptions, the OCR has essentially said you can go ahead and use a much broader array of options to be able to communicate with patients.

The one thing I would caution is that a lot of folks, a lot of vendors, are going to be jumping on the bandwagon, and they're gonna be promoting their services being HIPAA-compliant, and there's no official way of knowing that, so, just be careful of who the vendors are that you’re using and continue to monitor the OCR frequently asked questions on the topic.

Beth: Yeah, that’s correct. And the OCR’s enforcement discretion is based on a good faith use of the telehealth, and what that means is that you can't willfully violate HIPAA, law. So the enforcement discretion does not suspend the HIPAA privacy security or breach notification laws, but it does for this time period state that they will not enforce penalties against some in violation of that. So you're still required to comply with the privacy and security laws and provide notice in the event of a breach. but at this point in time, there has been a suspension of the penalties with regard to good faith use. So that means that, you know, if some bad actor comes in and Zoom bombs on a telehealth call, then that person would still be prosecuted by the government for doing that.

Nathan: Obviously, when things are available in video form, there may be a tendency to do things like post on social media an image of somebody's really wild tattoo or something like that. OCR would consider that to be personally identifiable information, and so just be really careful about the crossover between social media and what you do in your practice. Privacy rules, we're gonna always apply.

Morgan: So what are some of the risk considerations that these practices should have with particular platforms like Zoom or Facetime, some of the other ones that we've been hearing a lot about?

Beth: Sure, many of these, like Zoom, for instance, have received some publicity concerning the lack or absence of security protocols. So it's important to, first of all, make sure that you’re using the most current and up to date software that they have available that is on your phone. If you have an update notice, you need to be sure to update the software for Zoom or Facetime and also to put into place the types of privacy restrictions that they recommend. Zoom has a waiting room, and they suggest that you use the waiting room functions so that you control the people who enter your telehealth session.

Morgan: So Beth, you mentioned earlier the OCR enforcement discretion. Can you speak to that a little more and who's covered within that and who’s not?

Beth: The OCR enforcement discretion is limited to healthcare providers. It does not extend to insurance companies on, for instance, insurance companies that offer Teladoc. Those Teladoc services are not covered by this OCR enforcement discretion. It also doesn't cover associates, such as management services organizations or dental service organizations, who might contract for teledental or telehealth services. Those services would not fall under this enforcement discretion, either, unless the provider is also a contractor.

Nathan: However, I’ll chime in and say that those rules may be changing over time. The longer this goes on, the more change we're going to see from the OCR. In fact, they have now released three different enforcement issues or statements, and they aren't coming out in any regular intervals. So it's very possible the rules are going to expand even further.

Morgan: Along those lines, I'm interested to know, are there any particular resources where you would point people to read up on more information on this either on Waller’s website or through some of the regulatory agencies who are continuing to release of updates?

Beth: Sure, Waller has a COVID-19 resource page on our website. The OCR also has a specific page directed toward their enforcement discretion that relates to all of the enforcement discretion that's issued with regard to COVID-19. You can go to the HHS.gov and then Office Civil Rights.

Morgan: Well it sounds like we need to stay tuned for more information as this continues to play out and evolve, and I think we can all agree that it's a positive evolution for the healthcare industry and something that we've been talking about for a long time with patients having greater access to telehealth. Maybe, I think Nathan, as you pointed out earlier, there's not a whole lot of positive coming out of this pandemic, but hopefully we can see some small silver linings, and I think this access to telehealth and more providers looking into how they might be able to provide at least certain aspects of their care delivery in this kind of setting. So it's definitely exciting, and I think there still remains a lot of questions to be answered, and you're both great resources on that and tracking it regularly.

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