By Jennifer Henry Jackson and Sarah Cronan Spurlock

As a result of social distancing rules and “shelter in place” orders that have been implemented around the country, the COVID-19 public health emergency rapidly accelerated the use of telehealth in the United States.

Since the beginning of the pandemic, nearly half of all physicians are treating patients via telehealth, a sharp increase from only 18 percent in 2018. Regulations governing telehealth have been relaxed at the federal and state levels to increase flexibility and facilitate continued care via telehealth to help combat the spread of COVID-19.

Examples include, relaxation of originating site requirements to allow patients to be treated where they are located, expansion of government program coverage for services provided remotely, and increased payment parity.

In addition, the temporary relaxation or waiver of regulations pertaining to aspects of provider licensure, expanded options for acceptable technology, and HIPAA enforcement discretion, all described further below, have allowed patients alternative access to medical care without leaving their homes.

Whether or not telehealth is here to stay with the scope and scale we have seen these past few months will depend on how many regulatory requirements revert to their pre-COVID-19 state as the public health crisis is abated.

Licensure

In most states, telehealth providers are required to be licensed in the state where the patient is located. Following the declarations of emergency issued by President Trump and the Department of Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS) exercised its authority under section 1135 of the Social Security Act (42 U.S.C. § 1320b-5) to waive the requirement that healthcare professionals treating Medicare and/or Medicaid patients – including via telehealth – be licensed in the state in which they are providing services, provided they have equivalent licensure in another state.

Some states have fully waived licensing requirements for out-of-state providers, while others, like Kentucky, have introduced an expedited licensing process. On March 17, 2020, the Secretary for Kentucky’s Cabinet for Health and Family Services activated its operation of the emergency system for advanced registration of volunteer health practitioners pursuant to KRS 39A.356, and issued guidance directing the Kentucky Board of Medical Licensure (KBML) and the Kentucky Board of Nursing (KBN) to accept and review licenses for volunteer health practitioners and confirm that they have an active license in good standing to perform health services during the COVID-19 emergency.

In addition, the Kentucky Department of Medicaid Services waived the requirement that out-of-state providers be licensed in Kentucky if they are actively licensed by another state Medicaid agency.

Telehealth Technology

On March 30, 2020, CMS announced that providers may be reimbursed for remote visits with Medicare beneficiaries who have audio phones only, which was a major departure from the previous requirement that all telehealth visits be conducted using real-time audio/video communication technology. Kentucky took similar action, authorizing reimbursement for remote visits with Medicaid beneficiaries who have audio phones only.

The full impact of these steps remains to be seen, but they will likely offer increased access for elderly and low-income patients who may not have easy access to real-time audio/video communication technology.

Data Privacy and Security

On March 17, 2020, the Department of Health and Human Services, Office of Civil Rights (OCR), which is responsible for enforcing the HIPAA Privacy, Security, and Breach Notification Rules, issued a notification of enforcement discretion for telehealth remote communications.

The OCR announced that it will “exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered healthcare providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.”

The OCR’s notification also reported that providers using telehealth during the COVID-19 pandemic could use any non-public facing remote communication product to communicate with patients.

Pursuant to this guidance from the OCR, the Kentucky Department of Insurance issued guidance waiving the requirements of KRS 304.17A-005(47)(c) and announcing that it would not impose penalties for noncompliance with the statute in connection with the good faith provision of telehealth using such non-public facing audio or video communication products.

The HEALTH Act

Ensuring that telehealth is here to stay seems to be a priority for at least some members of Congress. On June 11, 2020, Rep. Glenn “G.T.” Thompson (R-Pa.) and Rep. G.K. Butterfield (D-N.C.) introduced a new House bill called the Helping Ensure Access to Local TeleHealth (HEALTH) Act, aimed at codifying Medicare reimbursement expansions for telehealth services provided by community health centers and rural health clinics that were spurred by the COVID-19 pandemic.

The landscape surrounding telehealth has shifted dramatically since the onset of the COVID-19 public health emergency. While the relaxation of some standards will likely be temporary (as in the case of HIPAA enforcement, for example), others may prove to be permanent, contributing to a broader acceptance of telehealth across the commonwealth.

– Jennifer Henry Jackson and Sarah Cronan Spurlock are with Stites & Harbison in Louisville, Kentucky.