Healthcare Industry Changes

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Healthcare Industry Changes

Regulatory changes for telehealth include enforcement discretion, cost-sharing waivers, and licensure changes. Details of these changes are below. All health insurance companies have waived telehealth cost-sharing requirements at least for COVID-19 screenings and most have waived them for all telehealth visits. Details of how each insurer is handling telehealth can be found on the "Payors" tab of the attached spreadsheet. Most telehealth providers have seen substantial increases in demand since the COVID-19 outbreak. Details for these companies can be found on the "Providers" tab of the attached spreadsheet.

Regulatory Changes for Telehealth

HIPAA Rules

  • The Office for Civil Rights (OCR) announced that it would exercise enforcement discretion during the COVID-19 crisis and would not "impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth."
  • Under normal circumstances, telehealth providers would be required to ensure all remote communication technology complied with HIPAA regulations to "protect the privacy and security of protected health information."
  • The new temporary rules for telehealth allow covered health care providers to use "any non-public facing remote communication product that is available to communicate with patients" for any medical assessment or treatment even if the telehealth service is not used to diagnose or treat illnesses related to COVID-19.
  • This notice allows health care providers to use popular applications that facilitate video chat including "Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype" for telehealth purposes without risk that the OCR will impose any penalties for HIPAA noncompliance.
  • Providers who use telehealth services are encouraged to notify patients that third-party video chat applications pose some security risks and providers should use all available encryption and privacy settings when using them.
  • Facebook Live, Twitch, TikTok, and other similar video tools are not acceptable applications for telehealth, even under enforcement discretion.
  • The OCR also recommends that providers attempt to seek out technology vendors that have HIPAA business associate agreements (BAA) such as Skype for Business/Microsoft Teams, Updox, VSee, Zoom for Healthcare, Doxy.me, Google G Suite Hangouts Meet, Cisco Webex Meetings/Webex Teams, Amazon Chime, and GoToMeeting; however, penalties will not be assessed during this time for not using a vendor with a BAA.

Coronavirus Preparedness and Response Supplemental Appropriations Act

  • On March 17, President Donald Trump enacted the Coronavirus Preparedness and Response Supplemental Appropriations Act, in which he used the 1155 waiver authority to broaden access to telehealth under Medicare.
  • Under this waiver, Medicare will pay for telehealth "evaluation and management visits (common office visits), mental health counseling and preventive health screenings" across the country and it was backdated to March 6, 2020, meaning all telehealth visits from that day forward, until the waiver is lifted, will be covered under Medicare.
  • Before this waiver was implemented, Medicare would only pay for telehealth on a limited basis when a person was living in a rural area and had minimal access to healthcare facilities.
  • Healthcare providers who are allowed to conduct telehealth visits under this waiver are "physicians, nurse practitioners, physician assistants, nurse midwives, certified nurse anesthetists, clinical psychologists, clinical social workers, registered dietitians, and nutrition professionals."
  • The Department of Health and Human Services (HHS) has also announced a policy of enforcement discretion that requires a "patient to have a prior established relationship with a particular practitioner" before conducting telehealth visits. Under this waiver, HHS will not conduct audits to ensure a patient has a prior relationship with any provider.
  • Virtual check-in services are allowed for all Medicare patients for brief communication via telephone or video technology.
  • These virtual check-in services are only allowed for "patients with an established (or existing) relationship with a physician or certain practitioners where the communication is not related to a medical visit within the previous 7 days and does not lead to a medical visit within the next 24 hours (or soonest appointment available)."
  • Patients using virtual check-ins must verbally consent to the services and copays and deductibles typically still apply.
  • E-visits, which do not have a video component, are allowed through online patient portals as long as they are initiated by the patient and can only occur if the patient has an established relationship with the provider.
  • E-visit "communications can occur over a 7-day period" and copay and deductibles typically still apply.
  • The OCR enforcement discretion policy for HIPAA also applies to Medicare providers.

Waiver of Medicare Cost-Sharing Requirements

  • On March 17, 2020, the Office of Inspector General (OIG) notified physicians and other healthcare providers that they would "not be subject to administrative sanctions for reducing or waiving any cost-sharing obligations Federal health care program beneficiaries may owe for telehealth services furnished consistent with the then applicable coverage and payment rules."
  • Before this waiver was implemented, any healthcare provider who would reduce or waive copays and deductibles owed by federal health care program beneficiaries would be subject to the Federal anti-kickback statute and any related monetary penalties.
  • As long as the telehealth services for which the cost-sharing requirements are waived occur during the COVID-19 Declaration, healthcare providers who reduce or waive coinsurance or deductible requirements will not be subject to any federal penalties.
  • The announcement clarifies that healthcare providers are not required to reduce or waive cost-sharing obligations.
  • Healthcare providers must still bill for the services provided via telehealth and must still "comply with Federal, State, or local statute, rule, regulation, ordinance, or other law that may be applicable in effect at the time."

State Licensure

  • While the general policy regarding telehealth services is that providers must be licensed in the state where the patient resides, many states are relaxing this requirement during the COVID-19 crisis.
  • The Center for Medicare and Medicaid Services (CMS) has waived the in-state requirement for Medicare patients and "states may request a waiver for Medicaid patients."
  • According to the AMA telehealth guide, "as part of emergency declarations, many governors have relaxed licensure requirements related to physicians licensed in another state and retired or clinically inactive physicians."
  • Physicians are encouraged to check with the board of medicine or department of health for the state in which they would like to provide telehealth services to obtain the latest information regarding telehealth licensure.
  • According to this chart from the Federation of State Medical Boards, the states that have not changed their telehealth licensure requirements are Alaska, Arkansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Ohio, Oklahoma, South Dakota, Utah, Vermont, West Virginia, and Wisconsin. All others have temporarily granted providers with out-of-state licenses to practice in-state during the COVID-19 crisis (some boards have implemented restrictions).

Research Strategy

All information was readily available except for some telehealth providers' usage trends and responses. In an attempt to find information related to telehealth providers' increase in demand during the COVID-19 outbreak, we searched through industry publications, news reports, and insurance company websites. We were unable to find concrete increases for Doctor on Demand, MeMD, and HealthTap. Additionally, we were unable to find information on how HealthTap and MeMD are ramping up to handle the demand. We assume that these companies are not as prominent as the others on the list and therefore, have not seen as much increase in volume. However, we did provide as many data points and information on these companies' activities related to COVID-19 as possible.
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