A Look at COVID-19 Telehealth Measures in NY and Beyond

Law360

Arthur J. Fried and Amy Lerman, Members of the Firm in the Health Care & Life Sciences practice, in the firm’s New York and Washington, DC, offices, respectively, co-authored an article in Law360, titled “A Look at COVID-19 Telehealth Measures in NY and Beyond.” (Read the full version – subscription required.)

Following is an excerpt:

As the spread of COVID-19 across the nation and around the world has dramatically limited safe access to health care providers, many U.S. jurisdictions quickly moved to implement a wide array of emergency measures to allow increased access to providers, including through telehealth, in the face of widespread physical distancing orders. This article provides an overview of the types of waivers that have been issued at the federal and state levels, with a specific focus on New York. …

In sum, this unprecedented threat to the public’s health has led to an unparalleled easing of regulatory standards that ordinarily operate to protect the public’s health, but have had the opposite effect in the face of a highly infectious and deadly disease.

Indeed, many believe that even outside of an emergency situation such as the present one, uniform standards that facilitate greater utilization of telehealth in all geographies and environments, and for all types of providers and payors, will enhance access to quality care. Similarly, greater flexibility to utilize professional licensure in order to provide care across state lines, particularly with respect to telehealth services, could serve to enhance limited access in many areas of the country.

At the same time, providers making the transition from in-person care to telehealth must be mindful of the temporary nature of current changes that are helping to facilitate greater use of telehealth, and should avoid long-range planning around the current rules of the road. All of the various changes are applicable to provision of telehealth services during the COVID-19 pandemic period, and as such are limited in time to this period, however long it may last. It is important for this reason that providers of telehealth services maintain consistent, best practice standards for tasks such as documentation and informed consent. Recommendations for providers include:

  • Preserving a record (paper-based or electronic) of fact sheets and other guidances issued by Medicare, Medicaid, commercial payors,and other regulatory agencies (e.g., OIG, the U.S. Drug Enforcement Administration, OCR) — if there is an audit in subsequent years you will want to be able to readily produce these materials as support for decision-making during this time period.
  • Documenting adherence to the criteria set forth by Medicare, Medicaid, commercial payors and other regulatory agencies (e.g., OIG, DEA, OCR);
  • Documenting requests by patients for telehealth visits, as well as patients’ consent to treatment via telehealth; and
  • Documenting that patient visits occurred during the COVID-19 pandemic time period.