Adam J. Fulginiti

On January 30, 2023, the White House issued a statement that the Biden Administration will end the COVID-19 public health emergency on May 11, 2023. President Biden confirmed this event during the February 7, 2023, State of the Union Address.

Consequently, this will impact flexibilities created to expand access to telemedicine during the COVID-19 public health emergency, with some going away, and others continuing on a permanent or semi-permanent basis. The upcoming transition period requires health care providers and health care plans to assess current telehealth practices, identify how standards are changing, and determine how to make the necessary adjustments within the immediate future.

Extension of Waivers Through the Consolidated Appropriations Act

The Consolidated Appropriations Act of 2023 continues many telehealth-related flexibilities for Medicare patients. Some of these flexibilities will be extended on a permanent basis and some on a temporary basis. Key permanent changes under the Consolidated Appropriations Act will include:

1. Federally Qualified Health Centers and Rural Health Clinics may serve as a distant site provider for behavioral/mental telehealth services.
2. There will be no geographic restrictions applicable to the originating site for behavioral/mental telehealth services. Medicare patients may, therefore, continue to receive behavioral/mental telehealth services in their home. Rural hospital emergency departments will also be accepted as an originating site.
3. Behavioral/mental telehealth services may be delivered using audio-only communication platforms.

On the other hand, temporary changes, i.e., those extended through December 31, 2024, will include the following:

1. Medicare patients may, in their home, receive telehealth services authorized in the Calendar Year 2023 Medicare Physician Fee Schedule.
2. An in-person visit within six months of an initial behavioral/mental telehealth service will not be required.
3. Telehealth services may be provided by a physical therapist, an occupational therapist, a speech language pathologist, or an audiologist.

Increased Scrutiny of Telemedicine Practices to Ensure HIPAA-Compliance

The U.S. Department of Health and Human Services Office for Civil Rights confirmed that it will roll back the HIPAA telehealth flexibilities established in the March 17, 2020, Notice of Enforcement Discretion. Following the conclusion of the COVID-19 public health emergency, the OCR will continue flexibilities for health care providers and health plans utilizing remote communication technologies for audio-only telehealth. For the most part, however, covered entities will be expected to return to pre-COVID-19 privacy measures related to telehealth use. This will require ensuring that telemedicine platforms are HIPAA-compliant, that telehealth practices meet the needs of disabled/non-English speaking patients, and that business associate agreements are in place with telemedicine platforms utilized by the covered entity.

Nondiscrimination in Telehealth

The Department of Health & Human Services Office for Civil Rights, along with the Department of Justice Civil Rights Division, issued guidance mandating that covered entities ensure that telemedicine practices provide accessibility to individuals with disabilities, and to Limited English Proficient (LEP) persons. Covered entities are expected to comport with this mandate, unless doing so would result in an undue financial or administrative burden, or a fundamental alteration of the health program. Covered entities must implement telemedicine practices that accommodate individuals who are disabled, including visually-impaired and hearing-impaired patients. Covered entities must also have HIPAA-compliant systems in place to secure interpreters for LEP persons.

Conclusion

The coming weeks require covered entities to assess PHE-related adjustments to telemedicine practices and to determine whether those adjustments will be permissible as the United States transitions out of the COVID-19 public health emergency. The failure to do so in the immediate timeframe may put covered entities at risk in the event that certain practices, once afforded during the COVID-19 public health emergency, are no longer permitted.

 

_{Legal Update for Telehealth and Telemedicine, February 9, 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}