Government Regulations on Telemedicine Affect Patient Care

Telemedicine and telehealth, which the National Institutes of Health (NIH) defines as the exchange of medical information from one site to another through electronic communications, has significantly improved patient care, especially during the COVID-19 global pandemic. The unprecedented convenience of telemedicine will undoubtedly have a lasting impact on access to healthcare and how care is delivered.

Federal lawmakers have tried to support telehealth and telemedicine initiatives by introducing laws that will reduce the limitations placed on telehealth providers. These measures will also reduce barriers to the use of telemedicine and improve access to care.

The situation in New York remains in flux, as the COVID-19 Disaster Emergency declared by former-Governor Andrew Cuomo ended on June 25, 2021, putting an end to waivers that allowed out-of-state professionals to provide telehealth services in New York without being licensed here. But his successor, Governor Kathy Hochul, declared a Statewide Disaster Emergency Due to Healthcare Shortages that allows many healthcare providers who are licensed and in good standing in any state in the United States or province or territory of Canada to practice medicine in New York.

Healthcare providers and administrators in New York who have questions about the impact of these laws are encouraged to contact Ekblom & Partners, LLP. Our attorneys have extensive experience advising and representing healthcare providers and can explain the impact of these laws on telehealth, telemedicine, and the in-person practice of medicine in New York.

Federal Government Suspended Telehealth Rules During COVID-19 Pandemic

During the COVID-19 pandemic, the Department of Health and Human Services (HHS) suspended certain rules in an effort to improve access to care and allow healthcare providers to evaluate and treat patients remotely. These include:

• Suspending the originating site requirement. Patients can receive telehealth services anywhere, including their home, regardless of where they live.
• No HIPAA penalties for good-faith provision of telemedicine. Previously, telehealth services were required to be delivered through a HIPAA-compliant platform. But during the pandemic, the federal government suspended the application of this rule and allowed the delivery of care through common video-calling applications like Skype or FaceTime.
• No pre-existing doctor-patient relationship required. During the pandemic, HHS suspended the requirement that a patient have an established relationship with the healthcare provider. This meant that a new patient could schedule a telehealth appointment.

While the relaxing of these rules only applied to Medicare, many private payers followed suit.

Due to the success of telehealth initiatives, federal lawmakers have introduced legislation that would make the use of telehealth options a permanent fixture in the American healthcare landscape.

Federal Telemedicine Legislation Seeks to Improve Access to Medical Care

In August 2021, President Biden signed an Executive Order on Improving Rural Health and Telehealth Access. The Order will make permanent some of the flexibilities that have been in place during the COVID-19 pandemic.

• In October 2019, the Connect for Health Act was introduced in Congress. The bill would allow telehealth and remote patient monitoring to be used by qualifying participants in alternative payment models, permit additional telehealth and Remote Patient Monitoring (RPM) in community health centers and rural health clinics, and allow telehealth and RPM to be basic benefits in Medicare Advantage.
• In November 2019, the Telemental Health Expansion Act was introduced, which would waive geographic restrictions in Medicare reimbursement guidelines for mental health services that are delivered through telehealth and includes the patient’s home as an eligible originating site.
• Finally, in June 2020, the KEEP Telehealth Options Act was introduced. This Act instructs the Secretary of Health and Human Services (HHS) and the Government Accountability Office (GOA) to study and report to Congress on the expansion of telehealth services during the COVID-19 pandemic, and GAO’s recommendations on improving the quality of and access to these services.

New York Still Allows Out-of-State Providers to Practice Medicine in New York

While federal lawmakers have introduced legislation that would make some of the flexibility provided by telemedicine permanent, former-Governor Cuomo effectively put an end to the practice of out-of-state providers offering telehealth services in New York with Executive Order 210.

However, Governor Kathy Hochul reinstated the practice by issuing Executive Order No. 4 which allows many healthcare providers who are licensed and in good standing in any state in the United States or province or territory of Canada to practice medicine in New York.

Gaps Remain in Access to Telemedicine

Despite federal and state laws that will reduce barriers to access and increase the availability of telemedicine, significant gaps remain. To implement new telehealth programs, health systems require a significant financial and workforce development investment. There are also concerns about privacy and quality of care.

Even though lawmakers have introduced legislation that would make access to telehealth permanent, it is unclear whether these laws will be passed and whether access to telemedicine will remain after the emergency ends. There will also be ongoing licensing questions to address, and it is unclear whether and for how long healthcare providers located and licensed in another state can provide remote services to a patient who lives in New York. In addition, healthcare systems will need to address potential changes to clinical care models, such as which providers will be diverted to telehealth practices, how to manage patient flow, and ensuring that they still have enough staff to handler in-person care. There are also questions of professional liability and whether a provider’s malpractice insurance will cover a telehealth practice.

Finally, there are issues of patient access, particularly for low-income patients who may not have reliable access to the internet. And even if the technological issues can be overcome, a question remains whether elderly patients, who generally require more frequent care, will be comfortable using these new technologies.

Ekblom & Partners: Legal Advice for Healthcare Providers

If you are a healthcare provider or administrator and have questions about the legal implications of offering additional telehealth options, Ekblom & Partners can help. Our lawyers frequently lecture and advise healthcare entities and medical professionals on the implications changes in the law will have on our healthcare-provider clients. We invite you to contact us to see if your situation matches our expertise.