Health Law Monitor
TO TREAT OR NOT TO TREAT VIA TELEMEDICINE? THAT IS THE QUESTION.
March 25, 2020
By: John Mark Huff
As the COVID-19 pandemic makes it more and more difficult for patients to access their healthcare providers in-person, telemedicine is becoming a more viable alternative. CMS is expanding access to telemedicine services on a temporary and emergency basis through both 1135 waiver authority and the Coronavirus Preparedness and Response Supplemental Appropriations Act.1 Through these provisions, CMS will permit a patient to be treated via telemedicine regardless of their location, and these visits do not have to be in-person.2
However, to the extent the 1135 waiver requires there to be an established physician-patient relationship prior to treatment, HHS will not conduct audits to ensure that the physician-patient relationship pre-dated the telemedicine treatment for the duration of this public health emergency.3 It should be noted that although CMS is providing payment for these services as set forth above, some insurance companies are not issuing payment for telemedicine services conducted on applications such as FaceTime.
Further, pursuant to the HHS’s Notification of Enforcement Discretion for Telehealth Remote Communications During COVID-19 Nationwide Public Health Emergency, which according to HHS’ website was last reviewed on March 23, 2020, healthcare providers may provide telemedicine via FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype without risk that OCR may attempt to impose penalties for noncompliance with HIPAA rules “related to the good faith provision of telehealth during the COVID-19 nationwide public health emergency.”4
If a provider chooses to provide telemedicine services using one of these applications, he or she should notify their patients that these applications may have privacy risks, and the provider should take all steps to use encryption and privacy methods that will protect their patients’ privacy when using these applications.5 However, the use of Facebook Live, Twitch, TikTok, or other similar applications, which “are public facing…should not be used in the provision of telehealth by covered health care providers.”6
Although the federal government has loosened some of its restrictions regarding telemedicine, it is important to remember that state telemedicine laws still apply. Telemedicine continues to emerge in West Virginia, and in light of COVID-19, the West Virginia Board of Medicine has relaxed its requirements for physicians and telemedicine for the duration of the COVID-19 pandemic. Further, pursuant to Executive Order 7-20 dated March 21, 2020, the requirement that telemedicine providers be licensed in West Virginia pursuant to W. Va. Code § 30-3-13a(b)(2) has been suspended for the duration of the COVID-19 pandemic so long as the physician is licensed in another state.
Moreover, the same Executive Order 7-20 states that the “[r]equirement that telemedicine be performed by video only” pursuant to W. Va. Code § 30-14-12d(c) has been suspended for the duration of the COVID-19 pandemic. See also W. Va. Code § 30-3-13a(c). The West Virginia Board of Medicine has clarified this statement on its website to mean that the initial encounter between a physician and a patient can take place via an audio only communication - consistent with the standard of care - for the purpose of evaluating and/or triaging COVID-19 patients.7 However, all telemedicine practice in non-COVID-19 patients must comport with the requirements of W. Va. Code § 30-3-13a(c)(1)(A) and W. Va. Code § 30-14-12d(c)(1)(A) that the physician-patient relationship may not be established through audio only communication.8 It should be noted that there is little guidance regarding who is and is not a COVID-19 patient.
For physicians treating non-COVID-19 patients via telemedicine in West Virginia, it is important to know and understand that before engaging in telemedicine services, the physician must establish a physician-patient relationship that comports with West Virginia law. Pursuant to statute, “[a] physician-patient…relationship may not be established through: (A) Audio-only communication; (B) Text-based communications such as e-mail, Internet questionnaires, text-based messaging or other written forms of communication; or (C) Any combination thereof.” W. Va. Code § 30-3-13a(c)(1)(A)-(C).
The practical import of this statutory section is that before a physician may treat a patient via telemedicine, he or she must have a pre-existing physician-patient relationship with the patient or he or she must establish a physician-patient relationship with the patient “[t]hrough the use of telemedicine technologies which incorporate interactive audio using store and forward technology, real-time videoconferencing or similar secure video services during the initial physician-patient…encounter” if the patient is receiving services using only telemedicine. W. Va. Code § 30-3-13a(c)(2)(A). Thus, it is essential that before treating the patient, the physician must have either first treated the patient in person or, if they are treating the patient for the first time via telemedicine, they must utilize some type of telemedicine technology that incorporates real-time videoconferencing. See id.
However, if the physician is a pathologist or radiologist, “a physician-patient relationship may be established through store and forward telemedicine or other similar technologies.” W. Va. Code § 30-3-13a(c)(2)(B). Consequently, it appears that the statute does not require the same face-to-face encounter for pathologists and radiologists practicing telemedicine as is required for all other physicians. See id.
Once the physician-patient relationship is established in accordance with the above-referenced statutory sections, “the physician…may utilize any telemedicine technology that meets the standard of care and is appropriate for the patient presentation.” W. Va. Code § 30-3-13a(c)(3). Given the social distancing that is becoming the new normal in the wake of COVID-19, the use of telemedicine is likely to become more and more prevalent. Therefore, it is of the utmost importance that physicians engaging in this type of medical practice in West Virginia properly establish an appropriate physician-patient relationship before treating patients and make sure whether they are treating a potential COVID-19 patient as opposed to a non-COVID-19 patient, because for the duration of the COVID-19 pandemic, different rules apply to each respective patient population.
1 https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet
2 Id.
3 Id.
4 https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html
5 Id.
6 Id.
7 https://wvbom.wv.gov/article.asp?id=74&action2=showArticle&ty=CTTS
8 Id.