As patients, naturally we intend to go to the doctor to get well. But there is a catch 22. What if the trip to the doctor or the emergency room to be made well might cause us to get sick, or more sick? Or what if we make the doctor sick, impairing his ability to care for other patients? Such risks have always existed to a degree, but nothing like today, during the Coronavirus pandemic.
Georgia-based Telemedicine Lawyers
The extraordinary, unprecedented COVID-19 pandemic and staggering fallout has cast new and very bright light on telemedicine and its potential efficacies in providing safe health care. Above all, telehealth benefits include ability to provide healthcare without no risk of COVID spread, a serious health risk for both patient and healthcare practitioner to avoid that will necessarily attend both commuting and in-person interaction. Telemedicine offers another way to “go to” the doctor and for the doctor to render care, free of the risk of virus spread. Apart from all other advantages and conveniences of telemedicine, the paramount importance of health and safety (of both healthcare practitioner and patient) have never been underscored so forcefully.
For good reasons, however, the progression of telemedicine delivery has heretofore been limited by the slow pace of developing legal, regulatory and rules and practical considerations. Standards applicable to the practice of medicine and reimbursement rules have tended to be tethered to in-person, “hands-on” care. Like all aspects of the business side of healthcare delivery, telemedicine implicates rules and regulations that govern healthcare delivery. Therefore, healthcare professionals must remain vigilant to avoid risks and pitfalls that may attend the provision of telemedicine services.
Of course, everyone needs to be paid. Recent federal steps relaxed some federal program reimbursement rules and protocol to make telehealth services more accessible for some patients. For example, Medicare beneficiaries as a group, due to the average age of persons in this category, appear prone to greater health risks if exposed to the Corona virus. Recent expansion of Medicare telehealth benefits are geared to facilitate telemedicine options for seniors. The intent is to increase healthcare within the present mobility limitations due to COVID-19, by facilitating reimbursement by for telehealth services to Medicare beneficiaries. Hopefully, avoiding, or greatly limiting, commutes to a healthcare provider.
According to the Centers for Medicare & Medicaid Services (CMS), The Coronavirus Preparedness and Response Supplemental Appropriations Act, passed in the wake of an emergency declaration by the President, will effectuate temporary policy changes and provide easy to use, accessible benefits to advance health and contain the spread of the virus. By a Social Security Act Section 1135 waiver afforded by virtue of the emergency declaration, relaxed regulatory requirements and, among other things, provide for recent expansion of Medicare telehealth benefits. CMS recently announced that, effective March 6, 2020, it will pay healthcare providers to provide telehealth services. On March 17, 2020, CMS published a Medicare Telemedicine Healthcare Provider Fact Sheet. Under new rules, as of March 6, 2020, Medicare can pay for office, hospital, and other visits furnished via telehealth by doctors, nurse practitioners, clinical psychologists, and licensed clinical social workers. Also, the HHS Office of Inspector General (OIG) will allow healthcare providers to reduce or waive cost-sharing for telehealth visits paid by federal healthcare programs. There are three categories of telehealth services under the new rules:
- Medicare Telehealth Visits: Defined by CMS as “A visit with a provider that uses telecommunication systems between a provider and a patient,” this category includes office and other outpatient visits (CPT Code 99201-99215); telehealth consultations, emergency department or initial inpatient (G0425-G0427); and follow-up inpatient telehealth consultations furnished to beneficiaries in hospitals or SNFs (GO406-GO408). According to CMS, the established patient relationship requirement may not be enforced during the current public emergency.
- Virtual check-ins: Defined by CMS as “A brief (5-10 minutes) check in with your practitioner via telephone or other telecommunications device to decide whether an office visit or other service is needed. A remote evaluation of recorded video and/or images submitted by an established patient.” (HCPCS codes G2012 and G2010). Virtual check-ins are available only for established patient relationships.
- E-visits: “A communication between a patient and their provider through an online patient portal.” (99421-99423, G2061-G2063). Available only for established patient relationships.
The complete list can be found at https://www.cms.gov/Medicare/Medicare-General-Information/Telehealth-Codes. Some physicians are already sending messages to their patients’ phones that they are available for telehealth visits.
With respect to commercial third party payors, a healthcare provider’s provider agreement with the insurer should be carefully reviewed to determine what parameters apply to telemedicine, to ensure timely reimbursement. Medical practices and healthcare practitioners should explore with such payors whether the current public emergency will affect reimbursement rules applicable to telemedicine services.
BUT . . . . Don’t forget State Medical Board or Medical Practice Act requirements
Reimbursement is important, but only one consideration for a medical practice or healthcare practitioner considering utilizing telemedicine. It is always critical that physicians be mindful of any applicable provisions of their state’s medical practice act or pronouncements by the state medical board concerning any aspect of their professional services. Georgia, for example, has a specific telemedical provision, Rule 360-3-.07, Practice Through Electronic or Other Such Means.
Georgia’s Rule 360-3-.07 notes that under O.C.G.A. §§ 43-34-8 and 43-1-19, the Georgia Composite Medical Board establishes standards of medical practice and can discipline Georgia-licensed physicians for unprofessional conduct. Rule 360-3-.07 then delineates in eight enumerated paragraphs the “minimum” standards of practice for telemedicine in Georgia, which include:
- Only Georgia licensed practitioners can treat or consult;
- The patient’s history shall be available to the practitioner;
- A Georgia licensed physician, PA or APRN has either personally seen and examined the patient or, under some limited circumstances articulated in the Rule, is “able to examine the patient using technology and peripherals that are equal or superior to an examination done personally by a provider within that provider’s standard of care”;
- Patient records are properly maintained;
- Delegated/supervised mid-levels must provide telemedicine within their scope of practice, which the supervising physician must document to the board, and must have “demonstrated competence” in the provision of telemedicine;
- Telemedicine patients must receive specified “credentials and emergency contact information” for the telemedicine practitioner;
- Telemedicine practitioners must provide, and telemedicine patients must receive “clear, appropriate,and accurate instructions on follow-up in the event of needed emergent care related to the treatment.”
- The telemedicine practitioner must “make diligent efforts” for the patient to be seen “in person” by a Georgia-licensed practitioner at least annually.
Given the current urgent need for telehealth services, perhaps many states will update rules on telemedicine practice in their state, or at least pass temporary new rules. Therefore, it is advisable that any telehealth practitioner review and understand the current state of the law.
AND . . . . Beware other Professional Risks
While improved reimbursement policies and rules is good news, what about some of the professional issues and risks that are unique to physicians and other healthcare professionals?
Many experts indicate that because telehealth remains in a pioneering stage, there is less guidance on the appropriate standard of care for patient encounters that are not in person. This may change rapidly. For example, in some states there are new informed consent standards, privacy standards and general standards of care applicable to telemedical services. These developing activities may establish in effect a heightened standard of care. In some instances, the developing standard of care may require use of telemedicine. In general, the relative newness of new standards and issues applicable to telehealth services may effectuate additional avenues of malpractice liability.
Medical Malpractice Insurance Coverage Issues
Another potential category of possible legal issues and disputes, about which telehealth providers should be mindful, also relates to professional liability: medical malpractice insurance coverage requirements. Of course every professional liability policy is nothing more than a contract. With the knowledge that one has some type of professional liability policy in place, it is easy to feel protected without really knowing from careful study of the policy’s specific provisions. In particular, a policy’s provisions regarding covered losses and exclusions should be carefully examined to determine whether telemedicine is covered.
Federal law and state law privacy and security laws are necessarily implicated by telehealth communications. It is a mistake to take the requirements of such laws for granted. In most instances, any healthcare provider would benefit by retaining a healthcare consultant to provide a HIPAA risk analysis to ensure the provider can demonstrate reasonable diligence as to privacy and security and compliance with applicable laws.
Georgia-Based Telemedicine Lawyers
We are a healthcare law firm. We represent many physicians, medical practices and other healthcare businesses regarding regulatory and health law issues, including telemedicine. If you have questions about this post, contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, firstname.lastname@example.org. You may learn more about our law firm by visiting www.hamillittle.com.
**Disclaimer: Thoughts shared here do not constitute legal advice. Please consult with an attorney to discuss your legal issue.