“In an era of unprecedented medical innovation, we have to do more to ensure that patients facing terminal illnesses have access to potentially life-saving treatments.”
Ron Johnson, U.S. Senator
“Unprecedented technological capabilities combined with unlimited human creativity have given us tremendous power to take on intractable problems like poverty, unemployment, disease, and environmental degradation. Our challenge is to translate this extraordinary potential into meaningful change.”
Muhammad Yunus, Economist, Nobel Peace Prize Recipient
With regard to Telemedicine and virtual access to medical and mental health care and providing crucial life-saving medical treatment to its citizens, to say that the United States’ current healthcare system has proven to be woefully inept would be charitable.
But from the fiery cauldron of Covid-19 comes bold, new initiatives for access to care. The business week beginning March 16, 2020 saw a number of unprecedented announcements and initiatives regarding emergency care measures pertaining to Telemedicine and Virtual Health Care.
On March 17, 2020 the Trump Administration announced that Medicare administered by the Centers for Medicare & Medicaid Services (“CMS”) would temporarily pay clinicians to provide telehealth services for beneficiaries residing across state lines for an initial sixty (60) day period. This action was undertaken pursuant to the 1135 waiver authority and the Coronavirus Preparedness and Response Supplemental Appropriations Act. For a review of the 1135 Waiver, see the embedded link:
During this initial sixty (60) day period, the HHS Office for Civil Rights (“OCR”) will waive the penalties for violations of the Health Insurance Portability and Accountability Act (“HIPAA”) against health care providers who serve patients in good faith through every day communication technologies such as FaceTime or Skype during the Covid-19 nationwide public health emergency.
As of March 16, 2020 and continuing for as long as the Secretary of Health and Human Service’s designation of a public health emergency remains in effect, DEA-registered practitioners in all areas of the United States may issue prescriptions for all schedule II-V controlled substances to patients for whom they have not conducted an in-person medical evaluation via telehealth communication systems, provided all of the following conditions are met:
- The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice;
- The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system; and
- The practitioner is acting in accordance with applicable Federal and State laws.
These controlled substances include opioids and benzodiazepines.
The Practicalities in Plain(ish) English
To the extent that any attorney can attempt to explain the complexities of these initiatives in understandable terms using the Queen’s English, I will endeavor to do so.
First, these three (3) initiatives pertain only to those patients who receive Medicare benefits. They do not pertain to Medicaid patients nor to private pay patients.
These initiatives will last for sixty (60) days or for as long as the Secretary of Health and Human Service’s designation of a public health emergency remains in effect.
Some private pay insurance benefit providers have enacted their own emergency measures regarding telemedicine and video counseling. For a review of some of these providers, please go to the following link:
If you click on the hyperlink associated with each benefit provider, you can examine the basic information submitted by that insurance benefit provider. As always, for more information contact your HR department, insurance agent or wellness professional for more specific information.
General Rules Regarding Telemedicine and Virtual Counseling
Forty-nine (49) state boards of medicine plus the medical board of the District of Columbia, Puerto Rico and the Virgin Islands require that physicians engaging in telemedicine be licensed in the state in which the patient is located. During this Public Health Emergency, with regard to patients receiving Medicare benefits, this provision has been waived.
With regard to non-Medicare beneficiaries, it is recommended that providers consult with you own state’s licensing requirements. Each state’s licensing requirements can be found at www.fsmb.org. The specific Telemedicine Policies Overview can be found by clicking here:
Medicare patients may use telecommunication technology for office, hospital visits and other services that generally occur in-person. Medicare beneficiaries will be able to receive a specific set of services through telehealth including evaluation and management visits, mental health counseling and preventive health services.
The medical provider must use an interactive audio and video telecommunications system that permits real-time communication between the distant site and the patient at home.
Distant site practitioners who can furnish telehealth services (subject to state law) include physicians, nurse practitioners, physician assistants, nurse midwives, certified nurse anesthetists, clinical psychologists, clinical social workers, registered dietitians and nutrition professionals.
All states and the District of Columbia provide reimbursement for some form of live video telehealth Medicaid fee-for-service.
Until the HHS Secretary issued its emergency order on March 17, 2020, utilizing Skype and FaceTime for telemedicine and virtual counseling subjected a provider to penalties under HIPAA. When the “public health emergency” expires, it is anticipated that the penalties for violating HIPAA for using those platforms will be reinstated.
Experts strongly recommend that medical and mental health providers utilize HIPAA Compliant Platforms and enter into Business Associate Agreements with those Platforms. Some of those Platforms include; Vidyo, Veesee and Zoom.
What Does the Future Hold?
Since I am neither “The Amazing Kreskin,” nor “Carnac the Magnificent,” it is difficult to prognosticate the future of Telemedicine and Virtual Counseling. On the one hand, the apparent ease of the process with technology in its current form is beyond denial. On the other, there is no doubt that video counseling is still a poor substitute for in person, face-to-face interaction.
With Telemedicine and virtual counseling, we can see and hear the patient. And yet, our other important senses are denied their import. We cannot utilize our sense of smell to detect the presence of alcohol. Our urine, breath, body odor. Researchers believe that certain cancers, multiple sclerosis, liver disease, Parkinson’s, kidney or liver failure can be detected through their unique scents. The manner in which the person interacts with his/her immediate environment is more readily apparent in face-to-face interaction. The sense of touch is also lost. We cannot get an accurate read on the texture, substance and moisture in the skin.
Certainly, once this genie is out of the bottle in terms of telemedicine, it is unlikely to ever be put back in. But, as providers focus on whether they CAN provide virtual counseling, the more fundamental question of, “whether they SHOULD provide virtual counseling” is not being asked or examined.
The expanding role of technology in medical and mental health must surely be embraced. But, it must be done so intelligently with a basis in science and with a greater understanding of the human condition.
The Mental Health Moment
To obtain additional information and to address any questions you may have on this topic, I urge you to tune in to the Mental Health Moment on Tuesday, March 24, 2020 at 8:15 a.m. on DFW radio station 1160 AM or www.bigdtalk.com or on Facebook Live at JP, Kathy & “The Crew.” Dr. John Torous of the Beth Israel Deaconess Medical Center is going to address these quickly evolving issues and will answer any questions you may have.