Telehealth: Traps For The Unwary Health Care Practitioner
The use of telehealth increased dramatically during the Covid-19 pandemic and there is every indication that it will continue grow despite the ending of the federal public health emergency (PHE) on May 11, 2023. The advantages telehealth creates for both patients and providers doesn’t mean that such growth will come without risks, however.
The efficiency of telehealth is counterbalanced by a new set of legal concerns, insurance complexity and clinical limitations. Providers using telehealth should take the time to gain an understanding of how to navigate these challenges so that they can provide meaningful care to patients who are most likely to benefit from telehealth and refrain from using telehealth for patients whose conditions may not be amenable to a remote encounter.
Greater Efficiency – But Risk
Using telehealth, a provider can potentially see nearly twice as many patients in a day as they can see in person. While that efficiency has helped to balance some of the challenges providers and health systems face with decreased staffing and reimbursement rates.
However, there are some risks. From a fraud and abuse perspective, providers should study the OIG Fraud Alert issued in 2022 that laid out the suspect characteristics that the government enforcement agencies are looking into when physicians partner with telemedicine companies in this fast-growing sector.
Aggressively building visit volume through telehealth visits may not only flag the provider for a possible audit to determine medical necessity of some services, it can also compromise quality of care. In this area, practitioners should be especially wary of over reliance on telehealth for purposes of providing post-procedure and other follow-up care. Where the provider’s ability to observe patients is more limited, patients may report a higher level of comfort and exhibit more signs of recovery in a virtual visit than they would if they had to make the trip to see the provider in person.
At a minimum, this can lead to missed opportunities to catch worsening health conditions early. Missed diagnoses during a telehealth visit are also a growing phenomena linked to malpractice cases, especially for providers who serve elderly or otherwise compromised patient populations.
State licensing is another tricky area that telehealth complicates. Some states require physicians to be licensed in any state where their patients are located. Others solve this issue with a limited license for providers to conduct telehealth across state lines. While it is expected that state licensing guidelines and interstate compacts are likely to make it easier for providers to practice in multiple states in the near future, practitioners who grew comfortable expanding their services across state lines during the pandemic must keep in mind that many temporary rules relaxing state licensing requirements have arleady or are scheduled to expire soon. As these rules shift, providers also need to transition patients to local providers to avoid an interruption in care and patient abandonment claims.
Notwithstanding the above, the Interstate Medical Licensure Compact as well as the Interstate Compact on Mental Health are rolling out across the country to streamline the way physicians can be licensed through a uniform application process. Unfortunately, these compacts are not fully adopted in many areas of the country. For now, it’s important for patients, providers and health systems to remain vigilant and closely monitor ever-changing telehealth licensing requirements at the state level.
Medicare Coverage And Reimbursement Following the End of the PHE
Practitioners enrolled in Medicare must also pay close attention to when the flexibilities that the Centers for Medicare & Medicaid Services (CMS) put in place for the end of the PHE (for the latest information, see this guidance from CMS). For example, the frequency limitations related to telehealth that CMS waived during the PHE were reinstated at the expiration of the PHE, including the limitation that, following an inpatient or emergency department telehealth consultation, a subsequent inpatient hospital visit may generally be furnished via telehealth only once every three days (CPT codes 99231-99233). Flexibilities waiving the in-person visit requirements for home dialysis patients and for patients whose services are covered by national or local coverage determinations are also expired on May 11, 2023.
CMS has extended other telehealth flexibilities beyond the conclusion of the PHE. Importantly, services have been added to the Medicare Telehealth Services List through December 31, 2023. CMS has stated that it anticipates addressing updates for 2024 and beyond through its established processes. In addition, CMS temporarily modified the regulatory definition of direct supervision, which requires a supervising physician or practitioner to be “immediately available” to furnish assistance and direction during a service, to include “virtual presence” of the supervising clinician through the use of real-time audio and video technology. This flexibility is currently set to return to pre-PHE rules in 2024.
Notably, the Medicare waiver allowing behavioral/mental telehealth services to be delivered using audio-only communication platforms has been made permanent, though an in-person visit within six months of an initial behavioral/mental telehealth service, and annually thereafter, will be required after December 31, 2024.
Telehealth providers are also particularly vulnerable to cybersecurity breaches such as malware and computer hacks, as well as improper data storage. It remains crucial to maintain Health Insurance Portability and Accountability Act (HIPAA) standards across telehealth platforms in order to safeguard protected health information and maintain the trust of patients. While the Office for Civil Rights exercised its enforcement discretion with covered health care providers who made good faith attempts to provide telehealth services during the PHE, this enforcement discretion will continue for 90 days following the end of the PHE.
Regardless of the platform practitioners use, provider-patient confidentiality continues to be an enormous issue in the telehealth arena. In particular, providers need to be aware of who is in the room during a telehealth session, whether there is consent of the patient to be accompanied by a friend or relative during the encounter and how that consent is documented.
In sum, this is no time for complacency among telehealth providers. Staying abreast of regulatory changes at both the federal and state level is essential as is keeping up with rapidly changing technologies to expand the scope of these services. In order to continue providing quality care, providers are well-advised to develop a list of best practices and other policies and procedures that are best suited for telehealth, and educate staff and patients about the limitations of this enticing but still relatively nascent area of medicine.
Reprinted with permission from Healthcare Business Today.
Chambers USA, America’s Leading Lawyers to Businesses ranked Steve Band One in the area of healthcare in 2022 and The Best Lawyers of America listed Steve in the area of health care law in 2023.