Will Telehealth Rules Change After Pandemic? Prepare Now

Telemedicine has exploded with the COVID-19 global pandemic with changes to state and federal telemedicine requirements. Telemedicine is here to stay: 94% of mental health professionals participating in the COVID-19 Healthcare Coalition survey plan to continue telemedicine after the pandemic.

The Department of Health and Human Services Office for Civil Rights announced in 2020 that it would waive certain HIPAA penalties related to telehealth services during the public health emergency. The federal declaration will likely be extended through the end of 2021; however, state and local governments may return to pre-COVID-19 regulations earlier. Staying current on the regulations and following the most stringent regulations in jurisdictions where both you and the patient are located is essential.

There are bills before Congress supporting continued widespread access to telehealth, but the telehealth landscape remains uncertain. Now is the time to review the basics of telemedicine and ensure compliance with legal and regulatory requirements post-COVID-19.

Best Practices

• Licensure:

  • Providers must be licensed in the state where the patient is physically located at the time of the visit. Ensure that you are aware of the regulations in the state where the patient is located, such as civil commitment and child endangerment reporting.

  • Check the Interstate Medical Licensure Compact when applying for a state medical license to specify additional states where you intend to practice. Participating states will issue licenses to physicians who meet eligibility criteria, thus eliminating the need to file multiple license applications.

• Informed consent: Prior to initiating telepsychiatry sessions, obtain informed consent from the patient. States may have laws requiring verbal or written consent and specific elements for the consent. Include considerations for confidentiality and information security, especially if using approved platforms that are not HIPAA compliant during the public health emergency. Record evidence of the consent in the patient’s medical record. At each session, verbally confirm and document consent.

• Telepsychiatry platforms: Use a HIPAA-compliant audiovisual platform and confirm that the platform vendor provides a Business Associate Agreement (BAA), ensuring its responsibility to appropriately safeguard protected health information. Platforms such as FaceTime, Skype, and Messenger, while convenient for some patients and permitted for use during the public health emergency, are not HIPAA compliant.

• Prescribing: The Ryan Haight Act has waived in-person evaluation for controlled substances during the public health emergency, but each state may have specific rules and regulations about prescribing through telepsychiatry. The waiver from the Drug Enforcement Administration (DEA) during the public health emergency allows a provider to have only one DEA registration to prescribe controlled substances instead of separate registrations in each state where prescribing.

• International telepsychiatry: Before providing telepsychiatry to patients located in another country, be sure you understand and comply with international licensure regulations and prescribing requirements; identify local resources in the event of a mental health emergency; understand the cultural practices of the region; ensure privacy, security, and confidentiality are protected via secure internet; and confirm with your malpractice insurance carrier that coverage extends to international telemedicine.

• Documentation: Document the telepsychiatry progress note as if an in-person visit plus informed consent, the patient’s location, your location, type of equipment used, and other participants in the session and their role. Include the emergency services contact information where the patient is located if needed.

• Malpractice insurance coverage: Obtain written confirmation from your professional liability insurance carrier that your policy affords coverage for telepsychiatry services. ■

This information is provided as a risk management resource for Allied World policyholders and should not be construed as legal or clinical advice. This material may not be reproduced or distributed without the express, written permission of Allied World Assurance Company Holdings, Ltd., a Fairfax company (“Allied World”). Risk management services are provided by or arranged through AWAC Services Company, a member company of Allied World. © 2021 Allied World Assurance Company Holdings, Ltd. All Rights Reserved.