COVID-19: GOVERNMENTAL REACTION, REGULATORY CHANGES, AND YOUR HEALTH CARE PRACTICE

As COVID-19 continues to spread and we as a country continue to react, laws and regulations will be rapidly changing.  We at Flaherty stand ready to help assist you and your efforts to respond to this public health crisis.  If you have questions or concerns, please do not hesitate to reach out to us for guidance.

For more information, please contact Luke Schmitt 304.230.6632 lschmitt@flahertylegal.com.

Interstate Medical License Compact

Not a new effort, but offers a pathway for establishing a multi-state practice

Even before the COVID-19 pandemic, efforts were made within the United States to facilitate the borderless practice of medicine in our country.  However, now more than ever, these measures are necessary even if temporarily.  To effectively combat this public health crisis, we need to be able to mobilize resources efficiently and effectively.

The Interstate Medical License Compact (the “Compact”) offers a voluntary, expedited pathway to licensure for qualified physicians who wish to practice in multiple states.  The mission of the Compact is to increase access to health care for patients in underserved or rural areas and to allow them to connect with medical experts through telemedicine technologies more efficiently.  In addition to making it easier for physicians to obtain licenses to practice in multiple states, the Compact also seeks to strengthen public policy by enhancing the ability of states to share investigative and disciplinary information.

The Compact is not a federal program or administered by a federal agency.  Nor was it a product of Congressional action or the result of executive or administrative order.  Rather, it is an agreement among states with the Commission functioning as an independent organization.  The Commission is based in Littleton, Colorado, and is governed by the terms of the Compact, which empowers the Commission to create bylaws, rules, and policies.

In West Virginia, in 2015, the Legislature passed House Bill 2496, adopting the Interstate Medical Licensure Compact.  West Virginia Code 30-1C-1 codifies the Interstate Medical Licensure Compact Act.

Section 30-1C-3 outlines eligibility requirements, Section 30-1C-5 governs applications and the issuance of expedited licenses, and Section 30-1C-6 sets forth the application fees.

The efficacy of the Compact may not move the needle much in our current situation, but its goals and purposes are something to keep in mind for the future.

More information about who may qualify to participate in the Compact and how to apply is available at https://imlcc.org/.

In addition, to directly combat COVID-19, on Wednesday, March 18, 2020, the Trump Administration announced that the Department of Health and Human Services (“HHS”) would allow all physicians and other medical personnel to practice in states other than those in which they are currently licensed to practice. The HHS regulation is designed to mobilize doctors across state lines to meet the needs of hospitals as they arise during this public health crisis.

However, it is crucial to recognize that the federal medical licensure waivers by HHS are limited in scope to conditions of participation and payment for federal health care programs such as Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP).  HHS and CMS accomplished these waivers according to Section 1135 of the Social Security Act, which authorizes the Secretary of HHS to waive certain Medicare, Medicaid, and CHIP program requirements and conditions of participation once the President declares a public health emergency (“PHE”).[1]

These waivers do not waive the requirement for physicians and other healthcare providers to maintain licensure in states where they are practicing a licensed profession, including via telehealth.  State laws continue to govern whether a provider is authorized to provide professional services in that state without holding an active license from that state’s medical board.  However, some states are working to ease these restrictions.

Congress is currently considering additional Legislation that would apply to covered health services by private payors.  We are continuing to monitor these developments.

Expanded Medicare Telehealth Coverage

Enables beneficiaries to receive a broader range of telemedicine healthcare

To promote continuity of care and to help minimize exposure and spread, on Monday, March 16, 2020, the Trump Administration announced expanded Medicare telehealth coverage that will enable beneficiaries to receive a broader range of healthcare services from their doctors without having to travel to a healthcare facility.  Beginning on March 6, 2020, Medicare will temporarily pay clinicians to provide telehealth services for beneficiaries residing across the entire country.

For more information regarding the actions of the Centers for Medicare & Medicaid Services (“CMS”) in this regard, please visit www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet.

The homepage for general Medicaid Telehealth Guidance can be found at www.medicaid.gov/medicaid/benefits/telemedicine/index.html.

Loosening of HIPAA Requirements

Permit providers subject to HIPAA to communicate with patients and provide telehealth services through certain remote communications technologies

The Office for Civil Rights (“OCR”) at the Department of Health and Human Services (“HHS”) has taken steps to permit covered health care providers subject to the HIPAA Rules to seek to communicate with patients and provide telehealth services through remote communications technologies.  Some technologies and the manner in which they are used may not comply with the requirements of HIPAA; however, OCR announced that it will exercise its enforcement discretion and will not impose penalties for non-compliance with the regulatory requirements under HIPAA rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.

For example, a covered health care provider, in the exercise of their professional judgment, may request to examine a patient exhibiting COVID- 19 symptoms using a video chat application to assess a greater number of patients while limiting the risk of infection. Likewise, a covered health care provider may provide similar telehealth services, in the exercise of their professional judgment, to assess or treat other medical conditions unrelated to COVID-19, such as a sprained ankle, dental consultation, psychological evaluation, or other conditions.

Under OCR’s Notice, covered health care providers may use popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, to provide telehealth without the risk that OCR might seek to impose a penalty for non-compliance with the HIPAA Rules related to the good faith provision of telehealth during the COVID-19 nationwide public health emergency. Providers are encouraged to notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications.

Under this Notice, however, Facebook Live, Twitch, TikTok, and similar video communication applications are public-facing. They should not be used in the provision of telehealth by covered health care providers.

Covered health care providers that seek additional privacy protections for telehealth while using video communication products should provide such services through technology vendors that are HIPAA compliant and will enter into HIPAA business associate agreements (BAAs) in connection with the provision of their video communication products. The list below includes some vendors that represent that they provide HIPAA-compliant video communication products and that they will enter into a HIPAA BAA.

• Skype for Business
• Updox
• VSee
• Zoom for Healthcare
• Doxy.me
• Google G Suite Hangouts Meet

For additional information, please visit www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html.

[1] HHS Secretary Alex M. Azar issued a PHE on January 31, 2020, and President Trump declared an emergency on March 13, 2020.