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Telehealth expansion during the COVID-19 public health emergency

published in McAfee & Taft LINC | March 30, 2020

Government agencies are swiftly removing regulatory barriers to obtaining telehealth services in an effort to keep patients home and healthy and to avoid unnecessary in-person visits and risk of exposure during the COVID-19 pandemic.

The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services, the agency responsible for enforcing HIPAA, is permitting healthcare providers who provide telehealth services in good faith to communicate with their patients using applications that have historically been prohibited under HIPAA, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Whatsapp video chat, Skype, and other applications that are designed to allow only the intended parties to participate in the communication.   By contrast, healthcare providers are prohibited from using “public-facing” communications, including Facebook Live, Twitch, TikTok, and other applications that are designed to be open to the public or otherwise allow broad access to the communication.   OCR has stated that it will not impose penalties against healthcare providers for failing to enter into business associate agreements (BAAs) with such video communication vendors, so long as the noncompliance relates to the good faith provision of telehealth services during the COVID-19 public health emergency.

The Centers for Medicare & Medicaid Services (CMS) has expanded the scope of covered telehealth services during the COVID-19 outbreak to permit Medicare beneficiaries in all areas of the country – whether rural or urban – and in all settings – including their own home – to receive telehealth services, subject to all other CMS telehealth requirements.  Previously, Medicare beneficiaries were generally required to reside in rural areas and travel to a medical facility in order to obtain telehealth services.   A broad range of healthcare providers, including physicians, nurse practitioners, clinical psychologists, and licensed clinical social workers, are eligible to provide telehealth services to Medicare beneficiaries.  Healthcare providers will be reimbursed for the telehealth visits at the same rate as in-person visits and are allowed to reduce or waive co-pays and other cost-sharing amounts.

The Oklahoma Health Care Authority (OHCA) has increased access to telehealth services for Medicaid beneficiaries and is now permitting the use of telehealth for services that “can safely be provided via secure telehealth devices.”  Additionally, while the OHCA generally requires the use of two-way, real-time communication technologies, OHCA is now permitting telehealth services to be performed via telephone during the COVID-19 pandemic if the SoonerCare member does not have access to telehealth equipment, the service is necessary for the health and safety of the member, and the service can safely and effectively be provided over the phone.  OHCA is also permitting the provision of certain physical therapy and occupational therapy services via telehealth during the COVID-19 public health emergency.

Many commercial health plans are also expanding telehealth access during the COVID-19 outbreak and should be individually consulted to determine their policy changes.

If you have questions about telehealth or other healthcare regulatory matters, please don’t hesitate to contact your McAfee & Taft Healthcare attorney.