Throughout the COVID-19 pandemic, health care providers have seen wide expansions to the use of virtual models of health care. As many of these expansions are positioned to end abruptly when the COVID-19 national public health emergency ends, providers are left wondering whether telehealth is here to stay and, if so, what actions need to be taken to ensure the services they are providing are safe, legal, and ethical.
Although telehealth has been an option in the health care industry for some time now, many providers have been slow to adopt the use of virtual and other remote practice models. However, the longer the telehealth-related COVID-19 waivers and expansions remain in place, the more likely it is that patients will begin to rely on it as a preferred model of care. Telehealth can increase access to care, improve the overall patient experience and health outcomes, and be more convenient for patients. Indeed, providers should be actively assessing their ability to provide services via telehealth or risk being left behind as others adopt robust remote methods of care.
Importantly, both state and federal governments have recognized the permanency of the rapidly increasing use of telehealth. For example, NYS Governor Cuomo signed Senate Bill S8416 (Assembly Bill A10404) into law on June 17, making some of the telehealth changes New York State implemented during COVID-19 permanent. Specifically, the bill amends Section 2999-cc(4) of the Public Health Law to permanently define telehealth as including audio-only telephone communication, with exceptions for contrary federal laws and regulations related to the Medicaid program and the Child Health Insurance Plan (CHIP).
At the federal level, a bipartisan group of senators have begun urging Senate leaders to retain many of the COVID-19-related telehealth expansions on a permanent basis, including changes allowing the provision of telehealth services to Medicare beneficiaries wherever the patient is located and those expanding the types of services reimbursable by Medicare.
Although the state of telehealth remains in flux, providers hoping to continue to use remote methods of practice after COVID-19 should begin evaluating their systems and processes now to ensure they are able to continue to provide these services for the long-haul. For example:
- Providers should consider the types of virtual health care practice they are interested in providing and the types of services that would be most appropriate for the populations they serve.
- Providers should consider the patient populations they serve and identify those populations that would be best served by integrating remote practice into their care. Providers should ask whether virtual-only care is appropriate for the patient’s condition or if they would be better served by a blend of in-person and remote services.
- Providers must evaluate their (or their organization’s) competence to provide telehealth services and must ensure they are adhering to the same laws, rules, regulations and upholding the same standards and competencies they would when practicing in person. This includes developing a plan for tracking and evaluating patient outcomes and patient satisfaction and identifying ways to modify their practice accordingly, along with other risk management and compliance considerations (e.g., documentation requirements).
- Providers should evaluate their technology infrastructure and their preferred virtual health platforms. For example, does your video conference platform comply with the Health Insurance Portability and Accountability Act (HIPAA), and do you have a business associates agreement in place? Although the Department of Health and Human Services (HHS) Office of Civil Rights (OCR) is not currently imposing penalties on providers for the good-faith use of telehealth that does not comply with HIPAA, it is unlikely that this penalty suspension will be long term.
Barclay Damon’s health care attorneys are ready to assist providers with telehealth issues such as developing patient consents, policies, and procedures and assessing risk management, privacy, and compliance concerns as providers continue to move into an increasingly virtually based model of health care.
If you have any questions regarding the content of this alert, please contact Dena DeFazio, associate, at ddefazio@barclaydamon.com, or another member of the firm’s Health Care & Human Services Practice Area.