Telemedicine and the Coronavirus Crisis: Key Legal Issues for Providers to Consider

Introduction

While governments and health care organizations globally work to contain spread of COVID-19, health care providers are ramping up efforts to prepare for a potential widespread outbreak, anticipating increased patient volumes that could strain hospital care units and medical equipment supply chains. As one such preparatory effort, health care providers have started to consider implementing telemedicine systems to engage with potentially infected patients. Telemedicine platforms are ideally situated to care for individuals with possible exposure to infectious diseases such as COVID-19 and both federal and state laws and regulations have progressed in recent years and months to facilitate greater adoption and use of telemedicine services. In determining whether and how to implement new telemedicine systems, however, there are an array of legal, regulatory, and contracting issues that providers should consider throughout planning and implementation.

Telemedicine and COVID-19

Given that telemedicine is poised to address several unique situational needs during the COVID-19 outbreak, the Centers for Disease Control, several state public health agencies, and numerous industry associations have endorsed the prospect of hospitals implementing telemedicine as part of their coronavirus response systems. Telemedicine permits health care providers to efficiently and safely examine, interview, triage, and monitor patients remotely. This allows providers to reduce human exposures while advancing access to high quality care.

During times of a novel disease surge, large numbers of both symptomatic and worried-well patients who have no risk of exposure otherwise seek care for reassurance and guidance purposes. This practice not only increases the risk of infectious disease exposures but also results in overcrowding at primary care clinics, urgent care clinics, and emergency departments where these patients seek care. Implementing telemedicine systems directly addressing the needs of these patients can mitigate and prevent such overcrowding. Telemedicine is also uniquely situated to bring the skill of infectious disease specialists to patients suspected of COVID-19 exposure in geographic locations (including international locations) that do not have access to such specialty care and can improve the effective triage and coordination of care for patients suspected of COVID-19 exposure. Importantly, in addition to the patient management benefits telemedicine can offer during this time of rising global COVID-19 incidence, the digital platforms through which telemedicine is delivered can: (i) help track disease and facilitate situational awareness of the outbreak in real time and (ii) support COVID-19-related clinical and public health research activities, such as vaccine development and evaluation of novel treatment strategies.

The Evolving Telemedicine Legal and Regulatory Landscape

The legal and regulatory landscape for telemedicine has been rapidly evolving over the past several years and months. Laws and regulations at both the federal and state levels have been significantly expanded to allow for greater utilization of telemedicine platforms for clinical services delivery. Included among these changes are improvements to reimbursement for telemedicine services, relaxation of technology requirements, implementation of novel approaches to licensure and credentialing, and relaxation of supervision laws related to non-physician providers.

On the reimbursement front, both Medicare and Medicaid have increasingly expanded telemedicine reimbursement to include a broader array of services and patient care situations. Medicare Advantage has done the same, and many states are adopting private payer legislation to facilitate or, in some cases, mandate private payer reimbursement for telemedicine services. The Centers for Medicare and Medicaid Services ("CMS") may also develop reimbursement exceptions in response to the COVID-19 outbreak. Indeed, several industry stakeholders advanced a letter to U.S. congressional leaders on February 28, 2020, to urge waiver of the Medicare restrictions on telemedicine reimbursement during times of public health crisis, such as this.

Lawmakers and regulators also have relaxed and expanded other important laws and regulations to facilitate greater telemedicine adoption. Some states, for example, have relaxed the technology requirements for establishing the patient-physician relationship over telemedicine, and several states have "emergency exceptions" that significantly relax otherwise strict telemedicine standards in times of emergency need that may apply to address COVID-19 needs. Many states in recent years have also modified physician supervision and delegation laws to permit remote supervision of non-physician providers. There has been a national response in the form of the Interstate Medical Licensure Compact to address the logistical difficulties of licensing physicians in every state where a patient receives care. In addition, CMS has adopted and encouraged "credentialing by proxy" models that permit providers to streamline credentialing of telemedicine providers based upon credentialing of the provider at the home institution. Each of these changes has created a much more favorable environment for providers to adopt and implement telemedicine services.

Legal, Regulatory, and Contracting Diligence for Implementing Telemedicine Systems

In considering whether and how to implement telemedicine systems into COVID-19 response systems, providers should consider the following checklist of diligence items:

• Consider reimbursement options and institute systems to capture reimbursement.
• Ensure providers are licensed in the states where patients will be assessed and treated, and consider potential exceptions to licensure and licensure compacts.
• Ensure compliance with state telemedicine standards and technology requirements in any state where a patient is receiving care.
• Ensure compliance with federal and state laws that prohibit prescribing controlled substances via telemedicine.
• Ensure compliance with state delegation and supervision laws of non-physician providers that will be delivering telemedicine services.
• Evaluate credentialing by proxy options to streamline and expedite credentialing needs of remote providers.
• Evaluate vendor contracting for telecommunications tools to ensure compliance with state and federal data privacy and security laws.
• Evaluate vendor contracting to apportion rights and responsibilities vis-à-vis patient medical records, billing for clinical services, placing clinical care orders, and arranging for follow-up care.
• Ensure compliance with other federal or state laws such as the Emergency Medical Treatment and Labor Act.
• Ensure compliance with any international laws or regulations, as applicable, for care being delivered to patients located in international jurisdictions.

Summary