Telemedicine in the age of COVID-19: What’s happened and what’s to come

By Megan La Suer, JD, MHA, and Robert M. Portman, JD, MPP, March 1, 2022

Every month, DermWorld covers legal issues in Legally Speaking. This month’s authors are health care attorneys with Powers Pyles Sutter & Verville in Washington, D.C. Portman is also general counsel for the AAD and AADA.

Before COVID-19, the provision of dermatology services via telehealth was much more limited. Moreover, federal and state health care programs had firm restrictions on the location where services could be reimbursed and the amount of reimbursement. When the U.S. Department of Health and Human Services (HHS) declared a public health emergency (PHE), CMS greatly expanded Medicare coverage of services provided via telehealth. Several state Medicaid agencies, as well as private payers, also expanded coverage for services delivered via telehealth during the PHE. All of this has helped lead to the emergence of teledermatology as a powerful tool to allow dermatologists to continue to deliver care during the PHE without seeing the patient in person. This article will provide a refresher of the telehealth policy changes that occurred during the COVID-19 PHE, and will provide a look into what telehealth policies might look like after the telehealth COVID-19 waivers expire.

Pandemic-related regulatory changes

Federal Medicare changes

Congress and federal agencies have taken great strides to increase access to telehealth services during the COVID-19 PHE. CMS issued guidance that, among other things, added 80 new services that can be provided via telehealth and eliminated the requirement that beneficiaries in traditional Medicare must live in rural areas in order to receive telehealth services, meaning Medicare beneficiaries in any geographic area could receive telehealth services. The guidance also allowed Medicare beneficiaries to receive telehealth services in their own homes and allowed physicians to provide telehealth services to new patients, in addition to already established patients. For purposes of providing services to Medicare and Medicaid patients, CMS also relaxed the requirement that physicians must be licensed in the state in which the patient is located (however, dermatologists must still comply with the licensure requirements in both the state in which the patient is located and the physician is located).

The HHS Office of Inspector General announced that it would provide flexibility, under certain conditions, for health care providers to reduce or waive cost-sharing obligations for telehealth visits paid by federal health care programs. The HHS Office of Civil Rights (OCR) also announced that it was exercising its “enforcement discretion” and would not impose certain penalties on health care providers subject to the Health Insurance Portability and Accountability Act (HIPAA) regulations who use telehealth in ways that do not comply with existing HIPAA rules. This has allowed physicians to use “non-public facing” technologies such as Apple FaceTime, Zoom, or Google Hangouts to communicate with patients.

State and private payer changes

Outside of Medicare, nearly every state implemented emergency regulations or an emergency order to relax licensure laws to allow physicians to provide services across state lines during the COVID-19 PHE. Additionally, states implemented waivers that expanded access and Medicaid coverage of certain telehealth services.

Similarly, private insurance plans expanded access to telehealth services that were not previously covered before the COVID-19 PHE. Moreover, many states implemented payment parity policies that require private payers to reimburse physicians the same amount for telehealth visits as in-person visits. Many states have since enacted these payment parity laws on a permanent basis. Dermatologists will want to check with contracted plans for updated policies.

Will the regulatory changes continue after the pandemic?

The federal government and many states have taken steps to ensure access to certain telehealth services will not be cut off when the PHE is declared over.

Federal regulatory reforms

CMS published the calendar year 2022 Medicare Physician Fee Schedule (PFS) final rule on Nov. 19, 2021, which included several proposals relating to coverage and payment for Medicare telehealth services and extension of temporary coverage for certain telehealth services. In the 2022 PFS proposed rule, CMS stated that it received several requests to permanently add a wide variety of services to the Medicare telehealth services list effective for CY 2022. CMS declined to add any of the requested services but announced that it will retain all services previously added to the Medicare telehealth services list on a Category 3 basis during the COVID-19 PHE until the end of CY 2023. Additionally, CMS announced that reimbursement for audio-only mental health services will remain in place after the PHE and also clarified Medicare’s billing requirements for audio-video mental health telehealth services, which were made permanent under the Consolidated Appropriations Act of 2021.

CMS also made changes to or clarified certain non-face-to-face services involving communications technology. Medicare requires certain types of services to be furnished under specific levels of supervision of a physician, including diagnostic tests or services incident to physician services. During the COVID-19 PHE, CMS changed the definition of “direct supervision” as it pertains to supervision of diagnostic tests, physicians’ services, and some hospital outpatient services to allow the supervising professional to be immediately available through virtual presence using real-time audio/video technology, instead of requiring the physician’s physical presence. This relaxed remote supervision requirement will remain in effect through the end of the calendar year.

Under the proposed rule, CMS solicited comments on whether the relaxed supervision requirements should be temporarily continued beyond the end of the PHE for COVID-19 and also whether the policy should be extended on a permanent basis. CMS did not make a decision whether to extend the relaxed remote supervision requirements but stated that it would “consider addressing the issues raised by comments in future rules or guidance, as appropriate.” Thus, the relaxed “direct supervision” requirement will remain in effect through the end of the calendar year.

During the COVID-19 PHE, CMS established HCPCS code G2252 to allow for a physician to furnish a longer virtual check-in, in any form of synchronous communications technology, including audio-only, on an interim basis for CY 2021. G2252 is defined as a “brief communication technology-based service, e.g., virtual check-in service, by physician or other qualified health care professional who can report E/M services, provided to an established patient, not originating from a related E/M service provided within the previous seven days nor leading to an E/M service or procedure within the next 24 hours or soonest available appointment, 11-20 minutes of medical discussion.” CMS finalized the proposal to permanently establish HCPCS code G2252.

As noted above, many physicians have been able to use non-public-facing video conferencing platforms to communicate with patients, which has greatly increased access to telehealth services. However, many of these platforms have proven to be less secure and put patient confidentiality at risk. OCR will likely rescind its enforcement discretion when the PHE is declared over, which means physicians who rely on these non-traditional video conferencing platforms will need to re-evaluate the platforms they use and consider transitioning to a HIPAA-compliant and more secure platform. Dermatologists will also want to review all agreements with technology vendors to ensure the vendor maintains HIPAA-compliant security policies and the services provided comply with federal Medicare and state Medicaid requirements.

Potential congressional reform

Numerous bills have been introduced in Congress that would support the continuation of expanded telehealth services following the end of the PHE. In March, Congress passed the Consolidated Appropriations Act of 2022 (HR 2471), which extends certain telehealth COVID-19 waivers for an additional 151 days past the end of the PHE. Some other comprehensive bills include the Protecting Access to Post-COVID-19 Telehealth Act, the Telehealth Modernization Act, and the CONNECT for Health Act. The common goal of these bills is to lock in certain services or features that came about during the PHE, many of which would require amending section 1834(m) of the Social Security Act to remove geographic and originating site restrictions.

National telehealth advocacy groups and other stakeholders have been continuously pushing Congress to enact legislation that would make the telehealth waivers enacted at the beginning of the COVID-19 PHE permanent. On Jan. 31, 336 organizations (co-led by Alliance for Connected Care, American Telemedicine Association, and HIMSS) sent a letter urging Congress to undertake permanent telehealth reform. Specifically, the organizations asked Congress to:

1. Authorize the continuation of all current telehealth waivers through Dec. 31, 2024;

2. Require HHS to complete telehealth-related evaluations by fall 2023 and combine findings into a single overarching dashboard with recommendations to inform permanent telehealth legislation by Congress; and,

3. Pass permanent telehealth legislation for implementation in 2024.

Congressional leaders are also getting pressure from their own colleagues to enact legislation to ensure that telehealth flexibilities tied to the duration of the COVID-19 PHE will not suddenly disappear when the PHE declaration ultimately expires. At the end of January, a group of 45 bipartisan and bicameral lawmakers sent a letter to Senate and House leaders urging them to support expanded coverage of telehealth services enacted during COVID-19.

Changes in state policy

As the vaccination rate increases and hospitalization rates decrease, states are beginning to roll back COVID-19 mandates or are allowing state emergency orders to expire. Because many of the policies that relaxed licensure requirements were issued under temporary state orders, it is important that dermatologists check with their state Medicaid agency or licensing board to determine what policies may have changed since the COVID-19 PHE was declared.

Moreover, states have recognized the importance of access to a wide range of telehealth services and have made permanent changes implemented under temporary regulations or emergency orders. For instance, just before their respective COVID-19 emergency orders expired, Arkansas and Texas enacted laws that codified many of the temporary telehealth waivers implemented during the PHE. The New York State Department of Health also issued guidance in 2021 extending the expansion for the ability of Medicaid providers to provide telehealth services during the remainder of the federally declared COVID-19 PHE, expanding the definition of telemedicine, and expanding the list of physicians eligible to provide telehealth services. Likewise, although California’s Public Health State of Emergency order and Illinois’s Disaster Declaration remain in effect, both states enacted laws in 2021 to increase access to telehealth services and extend certain telehealth flexibilities implemented during the PHE. However, not every state has enacted laws extending telehealth flexibilities. Florida Gov. Ron DeSantis issued an executive order on May 3, 2021, that terminated the state’s PHE. This order caused most of the state’s temporary telehealth regulatory flexibilities to expire. Payment parity for telehealth services expired and reverted to pre-COVID regulatory landscape, and all out-of-state physicians who practiced in Florida during the PHE will now need to be licensed by the state.

Implications for dermatologists

As discussed above, the federal PHE and state emergency orders on COVID-19 will not remain in place forever. There are, however, steps dermatologists can take now to ensure they will remain compliant with all federal and state laws and regulations when providing teledermatology services after the expiration of the COVID-19 waivers. Dermatologists should be familiar with all legal obligations under telehealth or remote services contracts that were entered into during the PHE and ensure that such obligations are compliant with federal and state laws outside of the PHE, including billing requirements and/or the Federal Anti-kickback Statute.

Dermatologists should also determine state requirements for providing telehealth services across state lines outside of the PHE and obtain any necessary waivers or licenses to continue providing such services in other states. To that end, dermatologists should consider filling out the FSMB Uniform Application for Licensure to facilitate obtaining medical licenses in multiple states. Additionally, dermatologists can take the following steps to ensure their organizations will remain HIPAA compliant when the enforcement discretion ends:

• Although OCR has relaxed HIPAA requirements, dermatologists should review and continue to follow the HIPAA policies and procedures that were in place before the PHE. If your practice or organization uses non-public-facing video conferencing platforms, it should implement reasonable safeguards to protect patients’ protected health information, including but not limited to using only the minimum necessary protected health information, using encryption technology, and enabling all available privacy settings.

• Have someone who is knowledgeable about HIPAA’s privacy and security rules review virtual platform agreements to ensure they are HIPAA compliant. Practices or organizations should also only work with technology vendors that are HIPAA compliant and that will enter into a business associate agreement.

This article is provided for informational and educational purposes and is not intended to provide legal advice and should not be relied upon as such. Readers should consult with their personal attorneys for legal advice regarding the subject matter of this article.

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