Practice of Medicine

Article

Telehealth Practices during Coronavirus (COVID-19) Outbreak

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March 25, 2020

Updated March 25, 2020

Disclaimer: As this situation is evolving daily, MagMutual recommends reviewing the latest guidelines for the most current information. Visit the MagMutual COVID-19 Resource Center to learn more.

Practicing Telemedicine Across State Lines

Generally, telemedicine providers must be licensed in every state in which they practice medicine. However, in response to the current COVID-19 pandemic, certain states have relaxed this requirement and are allowing physicians to practice across state lines. For example, the Georgia Composite Medical Board is now granting temporary licenses to physicians licensed in good standing by equivalent boards in other states to help with this public health emergency. Therefore, a telemedicine provider licensed in Kentucky who wants to render telehealth services to patients in Georgia should apply for a temporary license from the Georgia Composite Medical Board.

In Florida, physicians with valid, unrestricted, and unencumbered licenses in any state may provide medical services in Florida for the next thirty (30) days to respond to the COVID-19 crisis. Therefore, a telemedicine provider licensed in Connecticut who wants to render telehealth services to patients in Florida may do so. For a complete list states that have relaxed or waived certain licensure requirements, the Federation of State Medical Boards (FSMB) maintains an updated list here under State Emergency Declarations and Licensing Waivers. MagMutual PolicyOwners should contact their agents or call 1-800-282-4882 to notify MagMutual of any additional states your practice is now entering for telehealth services. Some states have patient compensation funds in place as part of their payment system for damages relating to malpractice, we can help you determine if a fund applies or if the practice in a particular state is not covered under the fund of your primary practice state.

If a physician assistant (PA) or advanced practice registered nurse (APRN) will be providing the telehealth services under the supervision of physicians, organizations may be required to notify their state’s medical board. Contact your state’s medical board for more information.

Consent for Telemedicine Patients

Though many states are relaxing their licensure requirements, healthcare providers must still obtain and document the patient’s informed consent for the telehealth services. Informed consent is more than just signing a form. Telehealth providers must explain the risks and benefits of receiving telehealth services, along with any information reasonably necessary to obtain effective consent.

Telemedicine providers are still required to follow the consent requirements of their payers. For example, some state Medicaid programs require written consent, while other commercial payers may allow verbal consent.

Below are some suggestions for conducting informed consent when providing telehealth services:

  • If your payer allows verbal consent, record and document the patient’s verbal consent as part of the patient’s telehealth visit.
  • Seek IT assistance in setting up some informed consent processes for patients on your patient portal, if you have one.
  • Continue to check your state and federal telehealth resources, as guidelines are changing daily in response to the COVID-19 crisis.

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Posted March 17, 2020

Following today’s White House coronavirus taskforce briefing, announcing the expansion of telehealth benefits for Medicare beneficiaries, CMS issued an updated telemedicine health care provider fact sheet for Medicare providers indicating the following significant changes retroactive to March 6, 2020, and for the duration of the COVID-19 Public Health Emergency:

  • Medicare providers will be reimbursed for full visits furnished via telehealth for Medicare patients residing at home, waiving previous requirements limiting telehealth services to Medicare beneficiaries in rural areas or requiring the Medicare patient to be physically present in a medical facility during the telehealth visit. Now, Medicare providers can offer full visits furnished via telehealth services to patients at home.
  • These full telehealth visits are considered the same as in-person visits and will be reimbursed at the same level as regular, in-person visits.
  • The Medicare patient can be located anywhere in the country (there are no rural residence requirements).
  • The Office of Inspector General (OIG) is allowing Medicare providers the discretion to waive a Medicare patient’s co-insurance and deductible that normally would be required for a Medicare telehealth visit (previously, the collection of co-insurance and deductible was required for telehealth visits).
  • The Office of Inspector General (OIG) is providing flexibility to Medicare providers to offer these telehealth services to both new and established patients (previously, full office visits were primarily for established patients).
  • Medicare continues to allow providers to perform virtual check-ins (5- to 10-minute encounter via telephone) and e-visits (communication via patient portal) for established patients.
  • We anticipate each Medicare Administrative Contractor will soon be issuing further guidance on their website.

CMS – Updated Telemedicine Provider Fact Sheet

Additionally, the Office of Civil Rights (OCR) has issued guidance that providers without HIPAA-compliant platforms can use real-time apps such Facetime or Skype to communicate with patients for telehealth treatment or diagnostic purposes (regardless of whether the communication is about COVID-19) without penalty for utilizing a non-HIPAA-compliant platform. The updated OCR guidance can be found here:

OCR – Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency

Furthermore, the Drug Enforcement Administration (DEA) has issued guidance allowing DEA-registered practitioners to issue prescriptions for controlled substances to patients via telehealth. While a practitioner must generally conduct an in-person medical evaluation before issuing a prescription to the patient via telehealth, this requirement is waived during the COVID-19 Public Health Emergency, if the following three conditions are satisfied:

  1. the practitioner issues the prescription for a legitimate medical purpose in the usual course of his/her professional practice;
  2. the telehealth communication is conducted using an audio-visual, real-time, two-way interactive communication system; and
  3. the practitioner is acting in accordance with applicable Federal and State law.

As long as these three conditions are met, the practitioner may issue the prescription using any DEA-approved methods of prescribing, including electronically or by calling the prescription into the pharmacy.

DEA - Updated Guidance Regarding Prescribing Controlled Substances via Telehealth

 

Original information March 13, 2020

Infectious disease experts believe telemedicine is critical for effective patient management during a pandemic. Telemedicine allows clinicians to provide safe, quality care while limiting potential transmission and decreasing the burden on the healthcare system. 

MagMutual has been receiving numerous questions from medical practices that have never provided these types of services, and wants to offer some general recommendations and considerations for establishing a telehealth program. 

General Telehealth Best Practices

  1. Review state laws and regulations:  Federation of Medical Boards Telemedicine Policies by State
  2. Take a value-based, multi-disciplinary approach in determining the need for a program, patient population, platform, etc.
  3. Appoint an “expert”/”lead” for the program.
  4. Identify specific patient populations, diagnoses or complaints where the standard of care can be the same via telehealth as it is in person, and levels of visits, i.e. virtual check-in, evaluation, monitoring, etc.
  5. Work with payers to understand their reimbursement models and requirements.
  6. Seek out a HIPAA-compliant platform that is easy for the patient and provider to utilize and interfaces with your EMR/documentation system.
  7. Establish internal policies and procedures for the program (including a process to gain the patient or patient guardian’s written consent for telehealth visits).
  8. Train staff and clinicians on rules and regulations, policies and procedures, and use of platform. (Important note: Become familiar with your state’s own telemedicine rules regarding prescriptions and whether controlled substances can be prescribed via telemedicine.)
  9. Inform patients and staff about the program.

Telehealth Reimbursement
Most commercial health insurance payers cover telemedicine and, with the recently approved Coronavirus Preparedness and Response Supplemental Appropriations Act, Medicare and Medicare Advantage plans now provide reimbursement to providers using telemedicine. To confirm coverage and reimbursement, we recommend contacting the insurance payer directly. The Centers for Medicare & Medicaid Services specifically released a notice about coverage and payment related to COVID-19.

Telehealth Software Programs
Telehealth is most effective when a clinician can see patients to make diagnoses, answer questions, and document that interaction. Two-way audiovisual is the best way to accomplish this and a great alternative to in-person visits during a pandemic.

Even in today’s environment, it is important to ensure HIPAA compliance when engaging in telehealth.  Many commercial electronic medical record systems have HIPAA compliant telehealth programs or work with specific vendors that allow for seamless integration into the electronic health record. 

If an organization doesn’t currently utilize a telehealth program, there are a few potential options for free and quick adoption. Using FaceTime or free online programs, like Doxy.me, might be the right fit for your organization at this time. While there is no guarantee that Facetime would be judged as HIPAA compliant if audited, based on what is known publicly about FaceTime, we believe the risk is low.    

Professional Liability Coverage
The MagMutual physician professional liability policy provides coverage for incidents arising out of telehealth services. Typically, coverage only extends within the United States or its territories. Providers must be licensed in the state where the patient resides and adhere to all applicable state laws.  MagMutual PolicyOwners should contact their agents or call 800-282-4882 for any additional questions, including coverage questions.

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Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.