OIG and OCR Relax Telehealth Requirements in Anticipation of Increased Demand (Coronavirus and the Law)

As the COVID-19 coronavirus takes hold in the United States, many providers are beginning to limit traditional face-to-face treatment and are starting to rely on telehealth services to treat patients.

Health and Human Service’s Office for Civil Rights (OCR) and the Office of Inspector General (OIG) made recent announcements to ease certain requirements relating to the use of telehealth services during the COVID-19 national public health emergency period.

[clear]While we recommend consulting with a healthcare attorney for specific guidance during these unprecedented times, here is a brief recap of the recent changes:

Changes to cost-sharing obligations

OIG issued a Policy Statement (pdf) on March 17, 2020 (Policy Statement) explaining that despite the usual requirements imposed by the federal Anti-Kickback Statute, practitioners will not be subject to administrative sanctions for reducing or waiving any cost-sharing obligations federal healthcare program beneficiaries may owe for telehealth services arrangements. This applies when:

1. A physician or other practitioner reduces or waives cost-sharing obligations (e. coinsurance and deductibles) a beneficiary may owe for telehealth services furnished with the then-applicable coverage and payment rules; and
2. The telehealth services are furnished during the time period subject to the January 31, 2020, COVID-19 Declaration (the Declaration), which stated a public health emergency has existed since January 27, 2020.

OIG further clarified that:

1. This Policy Statement does not require a practitioner to reduce or waive cost-sharing obligations;
2. Free telehealth services furnished during the emergency period set forth in the Declaration alone will not be viewed as evidence of inducement;
3. Practitioners must still only bill for services performed and comply with all other legal obligations regarding billing, claims submission, and cost reporting; and
4. Practitioners must still abide by all other federal, state, and local laws and regulations.

Changes to HIPAA Rules

The OCR also issued a notification on March 17, 2020, that provided for enforcement discretion for telehealth services during the COVID-19 Public Health Emergency (the Notification). Specifically, the Notification acknowledged that during this emergency, covered entities subject to HIPAA rules may seek to communicate with patients and provide telehealth services through remote communications technologies that would not typically be compliant with HIPAA rules.

As a result, the OCR indicated it will exercise its enforcement discretion and will not impose penalties for noncompliance with HIPAA rules in connection with covered health care providers who are providing telehealth services in good faith during the COVID-19 nationwide public health emergency.

The OCR authorized covered healthcare providers to use any non-public facing remote audio and/or video communication products during this period to communicate with patients. The office explained it also will exercise its enforcement discretion to not impose penalties for those services provided in good faith during the COVID-19 nationwide public health emergency. The OCR specifically explained this discretion applies to telehealth provided for any reason, regardless of whether the services are related to the diagnosis and treatment of COVID-19.

More specifically, the OCR explained providers may temporarily use applications such as FaceTime, Facebook Messenger video chat, Google Hangouts, or Skype without the risk that the OCR will impose a penalty for noncompliance with HIPAA Rules when these services are provided in good faith. On the other hand, Facebook Live, Twitch, and TikTok, for example, are public-facing and are not to be used for providing telehealth. Under the circumstances permitted under this Notice, the OCR indicated they will not impose penalties against providers for the lack of a Business Associate Agreement (BAA) with video communication vendors. If you already have a BAA in place for these services, you should continue to abide by the terms of that agreement.

It is important to note these changes occurred at the federal level and practitioners must still abide by other federal, state, and local laws when rendering telehealth services. Be sure to keep a thorough record of all telehealth interactions in accordance with such laws and regulations, and be sure to properly document the patient’s informed consent to receive telehealth services. As the demand for telehealth grows, we anticipate the rules and regulations associated with these services will continue to evolve.

Be sure to contact an attorney in the Woods Rogers Health Law group if you have questions about how your practice can implement telehealth services during the COVID-19 national public health emergency period in order to better serve your patients and community.

Visit the Woods Rogers COVID-19 Legal Updates page for a full list of alerts and resource links.