Since 2018, the CMS has increased the telehealth services that are eligible for provider reimbursement beyond traditional consultation or inpatient and outpatient visits to include preventive services, education and counseling sessions, and even care management or virtual check-ins.
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May 2020
Reported cases in which physician-patient relationships were not clearly established have resulted in patient lawsuits against physicians alleging neglect or abandonment. For this reason, many states also require the physician to agree to supervise the patient’s care, rather than merely to engage in isolated transactions.
Informed consent—The ATA recommends obtaining informed patient consent as a best practice, but it’s actually required by law in 39 states, and often before a patient can begin a telemedicine treatment program. Some states require a standard form to be signed, but others permit a patient’s oral statement at the beginning of a telemedicine session.
Not only is failure to obtain proper patient consent a potential issue for malpractice, it’s a requirement for reimbursement through some states’ Medicaid plans. Georgia is one state with a robust policy on telemedicine informed consent and provides a good example form in its Medicaid Telehealth Guidance.
HIPAA—Under HIPAA, telemedicine providers should permit only authorized users to have access to protected health information (PHI). This means using business associate agreements (BAAs) with medical billing services, information technology (IT) consultants, or other vendors of healthcare services, such as pharmacy benefit managers.
Telemedicine providers are expected to use “reasonable and appropriate safeguards” to prevent PHI breaches, including data and cyber security software programs. Telemedicine providers should consider monitoring access through the use of an external IT company, because providers will engage in live or recorded treatment sessions and communication with patients, which could include the transmission of medical records, visual images, and live or recorded video of the patient—all potentially subject to hacking through weak internet networks.
The Ryan Haight Act—Currently, teleprescribing is limited under the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, which restricts the prescribing of controlled substances over the internet (but does not consider the use of email or telephone as “telemedicine”).
This law has become a barrier to providers engaged in a variety of practice areas who prescribe controlled substances for seizures, chronic pain, or other patient medical conditions, because it requires any provider issuing a prescription for a controlled substance to be in a DEA-registered hospital or clinic, and the prescriber must be registered with the DEA in every state where a patient is located.
On March 16, the DEA published a COVID-19 Information Page on the Diversion Control Division website, providing guidance relating to the COVID-19 public health emergency, including the ability to prescribe controlled substances via telemedicine without a prior in-person exam. This public health emergency exemption is one of seven exceptions to the federal Ryan Haight Act’s requirement to conduct an in-person exam before prescribing controlled substances via telemedicine.
CMS regulations—Since 2018, CMS has significantly expanded telemedicine services that may be reimbursed by Medicare and now includes remote check-ins, remote patient monitoring, and interprofessional or internet consultations. The CMS announced that, starting this year, Medicare Advantage plans can offer patients telehealth and telemental health services as basic benefits under their plans. These Part C telemedicine benefits can be used from any location, including the patient’s home.
With respect to Part B reimbursement for telemedicine services, except for a few limited exceptions, all telemedicine services must originate from an in-person, face-to-face encounter. This is called the originating site requirement and provides that an originating site fee be paid to the originating facility that has a patient consultation on site prior to the start of any telemedicine services. The originating site facility fee is a separately billable Part B payment and is subject to post-payment review.