Post by Jenny Wang
The response to the COVID-19 pandemic has caused many regulatory agencies to reduce obstacles that have existed in the past to the provision of telehealth services. However, practitioners looking to expand their practices by telehealth should be aware of continuing technical and licensure considerations.
Many are likely aware that OCR has announced that during the COVID-19 emergency, OCR will not pursue otherwise applicable penalties for breaches that may occur in good faith provision of telehealth services. The telehealth services need not be related to diagnosis or treatment of COVID-19. The services can be any health care service that a provider, in their professional judgment, deems appropriate for telehealth, including mental health.
OCR has also indicated that telehealth may be provided on any non-public facing remote communication product such as Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Whatsapp video chat, or Skype. However, public facing applications such as TikTok, Facebook Live, Twitch, or Slack are not acceptable. OCR notes that many remote communication products offer enhanced security features to protect ePHI, and providers are encouraged to use such vendors. However, they would not be penalized for using less secure products in their effort to provide timely and accessible care during the pandemic. Providers are also encouraged to notify the patients that these remote communication applications carry certain privacy risks.
Another misunderstanding among providers is that the federal government has nullified licensure requirements between states. This is inaccurate. The federal government has waived in-state licensure requirements with respect to Medicare and some state Medicaid enrollments. However, each state continues to be responsible for regulating the licensure of practitioners who may practice in that respective state. The general rule continues to be that a practitioner seeing a patient via telehealth is considered to be entering the state where the patient is located and must have authorization to practice in that state. For example, California has issued an emergency proclamation whereby an out-of-state medical professional (i.e., a physician not licensed in CA) may be permitted to provide services to patients in California. [https://emsa.ca.gov/wp-content/uploads/sites/71/2020/03/MHPAuthorizationPolicyAndProcedure.pdf.] A California medical facility, telehealth agency contracted with a California medical facility or a staffing agency providing staffing to California medical facilities must submit a request to the California EMS Authority to exercise this flexibility. Medical professionals should ensure that they are authorized to practice in other states if they decide to see out-of-state patients via telehealth modalities.