Telehealth: Where Crisis Meets Regulation, Opportunities Arise

By Nadia de la Houssaye, co-leader healthcare litigation team and head of the healthcare industry telemedicine team, Jones Walker LLP.

Nadia de la Houssaye

At its most fundamental, telehealth (or telemedicine) is nothing new. What is new is the confluence of technology development and the rapidly escalating demands being placed on healthcare providers in the face of the novel coronavirus (COVID-19) — and regulators’ willingness to bend, loosen, or change rules that previously slowed the expansion of telehealth services.

Taken together, these three factors have created an opportunity to demonstrate the value of telehealth to providers, the public, and regulators, and to cement telehealth’s place in the delivery of healthcare services.

In particular, the US Centers for Medicare and Medicaid Services (CMS) has taken an unprecedented position in its effort to utilize telehealth as one of the country’s greatest weapons to not only flatten the new-infection curve, but to also address return-to-work screening needs, including antibody testing. Americans desperately need to return to work and CMS’ encouraged use and expanded coverage for COVID-19 diagnostic testing, at no cost to the insured, will hopefully aid in expediting safe return-to-work policies.

The bottom line? CMS is granting providers a tremendous amount of leeway and it is imperative that we take advantage of this opportunity to change the face of telehealth post-COVID-19.

Since early March 2020, CMS and the Federal Trade Commission (FTC), Drug Enforcement Agency (DEA), Food and Drug Administration (FDA), Department of Health and Human Services-Office for Civil Rights (HHS-OCR), Substance Abuse and Mental Health Services Administration (SAMHSA), and numerous other federal and state agencies have issued a steady flow of guidance easing previous restrictions that constrained the use of telehealth technology. Taking a step further, many have also announced programs and procured funding to better support the use of telehealth to provide essential care to communities, families, and individuals.

As states and cities began announcing shelter-in-place requirements and guidelines, on Mar. 16, Mar. 17, and Mar. 20, 2020, HHS-OCR likewise began issuing bulletins, notifications, and FAQs announcing the decision by HHS Secretary Alex Azar to waive certain HIPAA and HITECH Act non-compliance sanctions and penalties against covered entities and providers using, among other options, telehealth and non-public facing technologies for remote communications (including good-faith use of video applications such as Zoom, Skype, and FaceTime).

Following the passage and signing into law of the three major pieces of federal COVID-19-related legislation — the Coronavirus Preparedness and Response Supplemental Appropriations Act of March 6 (which included $500 million of Medicare telehealth mandatory spending), the Families First Coronavirus Response Act (the FFCRA) of March 18, and the Coronavirus Aid, Relief, and Economic Security (CARES) Act of March 27, 2020 — CMS has taken a number of actions loosening restrictions on, expanding the use of, and adjusting payment rates and ensuring reimbursement for telehealth services.

In addition to the guidance provided by CMS in various bulletins, many of these temporary policies have been included in an HHS Interim Final Rule issued at the end of March 2020, and have been further clarified in other rulings and FAQs issued on an almost-daily basis. These include the following, among many others:

While no one wanted (or wants) the COVID-19 crisis, for better or for worse this is a decisive moment for telehealth technology developers and companies, as well as providers. Now is the time to demonstrate the full capabilities and value proposition of these important tools.


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