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During the COVID-19 pandemic, healthcare providers are being encouraged to provide services using telehealth technologies in order to minimize in-person contact. However, numerous advisories from various federal and state authorities regarding telehealth have, in some cases, resulted in more questions from healthcare providers. 

Below are common questions asked by healthcare providers about providing telemedicine services, along with recommendations for compliance with the new telemedicine guidelines.

Can my clinicians provide telemedicine services across state lines?

State law still controls. While CMS has waived licensure requirements for purposes of Medicare, Medicaid and TRICARE reimbursement, clinicians are still required to be licensed in the state where the patient is located unless that state provides an exception or has waived licensure requirements during the COVID-19 outbreak. Several states have waived licensure requirements, are requiring “registration” rather than licensure or are expediting temporary license applications, but others have not changed their existing restrictions. 

We want to provide telehealth services but have not done so in the past and are not equipped with encrypted technologies. What are our options?

Most audio or visual communication products that are not public-facing should be acceptable; these can include Apple FaceTime, Skype, Google Hangouts  and Facebook Messenger. Prohibited public-facing platforms include Facebook Live, Twicth and TikTok. During the COVID-19 national emergency, the Office of Civil Rights (OCR) will not impose penalties for technical noncompliance with HIPAA rules in connection with the good faith provision of telehealth services. Encryption is not required, but your clinicians should apply the highest level of reasonably available security (for example, by putting security settings on “high”) when interfacing with patients. 

Providers that use technology vendors for communication products should also attempt to enter into business associate agreements with those vendors. However, OCR has stated that it will not impose sanctions for lack of an agreement where telehealth services are provided in good faith during the public health emergency.

What are some steps we can take to make sure we are reimbursed for telemedicine services during this time?

Each public and private payor has its own rules regarding reimbursement of telemedicine services, but you can avoid some common pitfalls that our clients face by:

  • Using communication technologies that provide both audio and visual components, such as those listed above. Not only is the federal government encouraging these communication methods, but they are also most likely to be reimbursable. Many payors do not reimburse for telephone-only communications, although some are making exceptions in light of the pandemic. On March 17, the Centers for Medicare and Medicaid Services (CMS) published guidance directing Medicare reimbursement for telehealth visits via audio and video, whereas on March 19, OCR released guidance permitting audio or video technology. Check the relevant payor policy before billing for a phone call.
  • Using billing codes that appropriately reflect the amount of time spent with the patients. Several providers have been utilizing Medicare’s “virtual check-in” codes (G2010, G2012) to bill for telehealth appointments, when they instead should be billing for a full appointment with a telehealth modifier. Virtual check-in codes are for quick check-in appointments (5-10 minutes) and are reimbursed at very low rates.

How can we ensure informed consent when using telehealth technologies?

The government recognizes the added challenges and in some cases impossibility of obtaining consent; for example, the federal Substance Abuse and Mental Health Services Administration (SAMHSA) recently published guidance regarding substance use data noting increased use of telephonic telehealth means that “providers may not be able to obtain written patient consent.” However, providers should still continue regular processes of obtaining informed consent to the extent possible in accordance with their state laws and payor policies. In addition, providers should:

  • Explain the type of technology being used, how patients can interact with it and the potential benefits of receiving telehealth services.
  • Describe the constraints associated with telehealth, such as interruptions in service, technical difficulties and privacy and security risks, including the potential for unauthorized access.
  • Seek voluntary consent from the patient to remote treatment specifically.
For more cutting-edge perspectives on the legal and business implications of COVID-19, visit our COVID-19 resource hub.