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Doctors Hope Relaxed Telehealth Rules Continue Beyond Pandemic

May 5, 2020, 7:15 PM

Doctors relying on eased telehealth rules to treat patients during the pandemic could face familiar obstacles to remote treatment when enforcement of security and privacy requirements return.

Chatting with physicians online has drastically expanded during the pandemic via video-conferencing apps such as Google Meet, Zoom, Skype, and Apple FaceTime. That was more difficult when privacy and security rules were more rigorously enforced.

Temporarily relaxing the privacy and security rules was aimed at keeping patients from showing up at hospitals and doctors’ offices, potentially exposing themselves and others to the coronavirus. Now the goal is to give all patients virtual access in the long term, Todd Czartoski, chief executive for telehealth and chief medical technology officer at Providence St. Joseph Health, said.

Making that happen will mean making permanent some of the changes the Department of Health and Human Services instituted during the pandemic, such as making it easier for doctors to treat patients across states lines and looking at ways to pay doctors for remote services. Federal regulators will also need to decide what security and privacy measures will be necessary going forward.

The coronavirus outbreak “allowed us to do things that normally would have taken months or in some cases years to do, and we’ve been able to do them in days to weeks out of necessity,” Czartoski said during a webcast Monday.

The Centers for Medicare & Medicaid Services is considering what recent changes to keep once the public health emergency ends, a spokesperson said.

Payment Consistency

Prior to the coronavirus, doctors and hospitals had a hard time getting reimbursed when providing virtual treatment unless their patients live in rural areas.

“Maintaining flexibilities for providers to be reimbursed for services provided wherever patients are located, including in their homes, will likely be a key component of increasing utilization of telehealth on a go-forward basis,” Madison M. Pool, a health-care associate with Arnall Golden Gregory LLP in Atlanta, said.

Since March, the CMS has allowed Medicare and Medicaid to pay telehealth costs for office, hospital, and other visits.

The inspector general’s office at the HHS also permitted health-care providers to waive or reduce cost-sharing for virtual visits, including deductibles, coinsurance, and copayments. Blue Cross Blue Shield, for example, took advantage of this move March 19, waiving fees that the patient would have to pay out of pocket for these services.

Both of the allowances from the agency end once the pandemic is over.

Doctors want federal regulators to take a hard look at how Americans used those services during the pandemic while weighing how to move forward, Jesse Ehrenfeld, chair of the American Medical Association board of trustees, said.

Medical providers made a rapid—and costly—shift to providing services remotely, and they expect to continue using those tools once the coronavirus outbreak winds down, Joseph Kvedar, professor of dermatology at Harvard Medical School and the president of the American Telemedicine Association, said.

“Our industry has made a very abrupt platform change and it would be naive to think that that doesn’t cost money,” Kvedar said. “But most of us are preparing so that when the dust settles we won’t go back to a world without these tools.”

Some technology companies are trying to make that transition easier. Google Meet, which is the tech giant’s business video conferencing app, announced April 29 its platform would be free for everyone to use.

Streamline Credentialing

With coronavirus threatening to overwhelm hospitals, several states waived licensing requirements, allowing out-of-state doctors to practice in virus hotspots. Making those changes permanent would also be a boon to telemedicine.

“At least some of these changes need to continue post-pandemic, otherwise the regulatory restrictions will once again hinder telemedicine adoption, as it has for many years,” Dennis Williams, corporate partner at Kirkland & Ellis LLP in New York, said.

The American Medical Association is urging states to join the Interstate Medical Licensure Compact to make it easier for physicians to obtain licenses that would enable them to practice in multiple states by filing just one application, Ehrenfeld said.

The industry could also use a method called credentialing by proxy, which lets health systems accept the credentials of physicians practicing telehealth without going through multiple credentialing processes.

“The idea that I can apply for a license and get it quickly in another state is happening during this pandemic, so why not let it stick?” Kvedar said.

Waivers Expire

When the telehealth waivers expire, health systems will need more business associate agreements to continue treating patients remotely. Those agreements require companies like Apple and Google that work with doctors to ensure that patient data is secure.

The HHS Office for Civil Rights said in March that it wouldn’t penalize hospitals and doctors that use popular video chat apps without first getting a business associate agreement to provide telehealth services.

But the video apps must still protect patient data—including notes, treatments, and lab reports—under health security provisions.

“When the public health emergency is over and OCR basically eliminates that decision, a lot of health-care providers are going to have to figure out what their long-term telehealth and technology strategies look like,” Lisa Mazur, a partner at McDermott Will & Emery in Chicago, said.

“OCR will also need to take a more middle-of-the-road type of approach to give health-care providers time to adjust and develop a telehealth platform that meets HIPAA privacy and security requirements.”

Allowing doctors to use video-conferencing apps like Apple FaceTime, Skype, and Zoom during the pandemic without threat of penalty will boost their popularity moving forward, according to Kevin Coy, a partner and co-chair of the privacy and consumer regulatory practice at Arnall Golden Gregory LLP in Washington D.C.

The OCR didn’t actually endorse any remote platform, but “being on that list is almost certainly a plus for health-care providers trying to select a vendor to help them offer telehealth due to the pandemic,” Coy said

Zoom, recently riddled with privacy concerns, has more than 200 million users overall, a number that has grown during the pandemic. Google Meet said that it has over 2 million users, a new high.

Although the AMA doesn’t endorse any specific platform, it encourages physicians to use technology with end-to-end encryption like Skype and FaceTime, Ehrenfeld said.

To ensure privacy and security safety going forward, the HHS will have to tighten the security rules around video-conferencing platforms, according to Linda A. Malek, a partner at Moses & Singer LLP and chair of the firm’s health-care and privacy & cybersecurity practice groups.

“Being able to be adaptable and making these waivers permanent where appropriate, would benefit both patients and providers,” she said.

To contact the reporter on this story: Ayanna Alexander in Washington at aalexander@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Andrew Childers at achilders@bloomberglaw.com

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