The Federal government has responded to the COVID-19 public health emergency by providing guidance regarding the expanded use of telehealth services to healthcare providers, including doctors, dentists, and other appropriately licensed health care professionals. Providers should always share with patients the security risks of telehealth visits, and should obtain and document patient consent at the outset of each telehealth visit. Medical records of the telehealth visit should be maintained according to existing Federal and state standards. Below is a summary of some of the key actions.

Telehealth Prescribing of Controlled Substances

The U.S. Drug Enforcement Administration (“DEA”) recently published guidance that temporarily allows DEA-registered prescribers to issue prescriptions for controlled substances to patients using telemedicine without a prior in-person patient medical evaluation. The provider must use interactive, real-time audio-video telehealth (asynchronous telehealth involving controlled substances is not allowed). The prescription must be for a legitimate medical need. The provider must be otherwise practicing in accordance with other state and federal law.

Here is the link to the DEA’s COVID-19 Information Page:
https://deadiversion.usdoj.gov/coronavirus.html

Telehealth Expansion for Medicare Beneficiaries

On March 17, 2020, the Centers for Medicare and Medicaid Services (CMS) temporarily expanded access to telehealth services covered by Medicare so that more beneficiaries can receive services from their physicians and other health care providers without having to travel to a health care facility or office.

Here is a link to the CMS Fact Sheet:
https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet

HIPAA Requirements Loosened

The Office of Civil Rights of the Department of Health and Human Services (“OCR”) has also provided healthcare providers with additional discretion to use telehealth during the COVID-19 nationwide public health emergency. Under the OCR Notification issued March 19, 2020, covered health care providers may use popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, to provide telehealth without risk that OCR might seek to impose a penalty for noncompliance with the HIPAA Rules related to the good faith provision of telehealth during the COVID-19 nationwide public health emergency. Providers are encouraged to notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications.

Here is a link to the OCR’s Notification:
https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html

Cost-Sharing Waivers in Federal Health Care Programs

The Office of Inspector General of the Department of Health and Human Services (“OIG”) issued a Policy Statement on March 17, 2020, to notify providers that stated that it would not impose civil monetary penalties against any provider that waives cost-sharing amount (coinsurance and deductibles) owed by federal health care program beneficiaries for telehealth services during the Public Health Emergency.

Here is a link to the OIG’s Policy Statement:
https://oig.hhs.gov/fraud/docs/alertsandbulletins/2020/policy-telehealth-2020.pdf

Our healthcare attorneys are available to answer your specific questions about this new law and will help you implement the requirements. Please reach out to your Lashly & Baer attorney with any questions.

Prepared by:

Stuart J. Vogelsmeier
Phone 314-436-8349
Email: sjvogels@lashlybaer.com

Richard W. Hill
Phone: 314-436-8317
Email: rhill@lashlybaer.com

Scott A. Pummell
Phone: 314-436-8369
Email: spummell@lashlybaer.com

This summary and legal alert is an overview of the new guidance. It is not intended to be, and should not be construed as, legal advice for a specific factual situation.