In a world changing faster than we ever thought possible, the regulations surrounding telepsychiatry are evolving at lightning speed. The demand for telehealth service has exploded in recent weeks and it is imperative to know the rules and regulations as organizations rapidly adapt to this form of care. Below is a brief highlight of the most relevant policies impacting the telepsychiatry industry today. We will continue to update this post in the coming weeks as the situation evolves.
Disclaimer: The information on this page is a summary of the current laws, regulations, and guidance and not to be used as a comprehensive legal document. The information is continually changing so we encourage you to raise any questions to your legal counsel about how it may be applicable to your facility or organization.
Content last updated on April 2, 2020.
With the Ryan Haight Act, can telemedicine now be used more broadly to prescribe controlled substances?
Yes, since the Secretary of the Department of Health and Human Services issued a public health emergency, that “practice of telemedicine” exemption within Ryan Haight can be met. Per the DEA, for as long as the Secretary’s designation of a public health emergency remains in effect, DEA-registered practitioners may issue prescriptions for controlled substances to patients for whom they have not conducted an in-person medical evaluation, 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.
- The practitioner is acting in accordance with applicable Federal and State law
What changes have been made to HIPAA?
Effective immediately, the HHS Office for Civil Rights (OCR) will exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency.
Are licensure requirements being waived?
Individual states are providing guidance on licensure requirements on an ongoing basis. Currently, 46 states have either waived their licensure requirements, as long as the clinician holds a medical license in another state, or have implemented a temporary emergency licensure process. These actions are meant to remove barriers for clinicians to provide services in other states where they do not hold a license or to create an application process wherein applications are reviewed within a very short period of time.
However, waived licensure requirements and the temporary emergency license are only in effect until the public health emergency is terminated or otherwise stated. Ideally, if a clinician is granted an emergency license in a state that will be a permanent assignment for the clinician, they should still proceed with the full, permanent licensure during this time.
Only a handful of states are expediting the process to obtain a full, permanent license. Kansas, for example, is leveraging the Interstate Medical License Compact (IMLC) to expedite the licensure process for physicians who have received a license in another state through the compact within the past 365 days. Wisconsin is also communicating that they are reviewing full applications more frequently.
For more information, please refer to the FSMB’s resource, “States Waiving Licensure Requirements/Renewals in Response to COVID-19”. The resource is updated daily.
Are sites able to expedite the privileging process?
Guidance on this topic is still ongoing. Under the Department of Health and Human Services (HHS) and the Health Resources and Services Administration (HRSA), if there is a public health emergency declared, health centers that receive funding under Section 330 of the Public Health Service Act (PHSA), such as FQHC’s and CHC’s, may grant providers temporary privileges by the CEO of the impact health center and reviewed by the applicable clinical department head and/or CMO. The relevant areas that may allow for expedited review and verification that could occur that includes confirming: Identity, Professional Credentials, Claims History, and Fitness/References. Additionally, the AHA (American Hospital Association) sent a letter to HHS on Monday requesting the ability to have expedited or presumptive credentialing and privileging (along many other exceptions which some have been addressed - e.g. HIPAA, Telehealth Technology, etc.).
UPDATED: Additionally, if a state has requested for a Section 1135 waiver, they may include the ability to help facilitate any credentialing and privileging that is needed with payors to help expedite them to submit claims for services rendered by the providers. Currently 39 states have applied for and granted such waivers.
What changes have been made to Medicare telemedicine restrictions?
Medicare has temporarily expanded previous restrictions on telemedicine services. Firstly, the Coronavirus Preparedness and Response Supplemental Appropriations Act allowed the Secretary of Health and Human Services (HHS) to waive the geographic and originating site requirements within Medicare. With this change, Medicare beneficiaries can receive services in their own homes without having to be located in a rural or health professional shortage area. Furthemore, with the recent enactment of the CARES Act, the modality requirement is now open to phone based, audio-only services. Previously, only real-time, audio-visual technology could be used. The CARES Act also relaxed the requirement that the provider must have seen a patient within the past three years in order to be reimbursed. For more information, see the Center for Connected Health Policy’s Telehealth Coverage Policies in the Time of COVID-19.
Are state Medicaid programs also making changes during this time?
Individual state Medicaid programs are currently coming out with guidance on an ongoing basis. States are applying for Section 1135 waivers in order to make changes and offer flexibilities in providing resources to their state beneficiaires. Florida, for example, was the first state to submit and be approved for their Section 1135 waiver request to remove unnecessary barriers on clinicians such as prior authorization requirements. CMS has now approved an additional 39 state Medicaid waivers from the following states: AL, AZ, CA, CO, CT, DE, HI, IA, ID, IL, IN, KS, KY, LA, MA, MD, MN, MO, MS, MT, NC, ND, NH, NJ, NM, NY, OK, OR, PA, RI, SC, SD, TN, TX, VA, VT, WA, WV, & WY. These waivers are effective as of March 1, 2020 and will end once the public health emergency has been terminated.
UPDATED: Individual state Medicaid reimbursement policies continue to be updated. The Center for Connected Health Policy (CCHP) has provided a good resource on what changes each state has enacted.
What type of virtual services and what codes may apply for Medicare beneficiaries?
CMS has provided a fact sheet of 3 ways that the patient may receive care and what codes the provider may submit.
Are states granting extensions on existing provider license renewals and/or to fulfill CME credit requirements?
States may begin to extend any renewal periods for provider licensure renewals or adjust requirements to fulfill CME requirements as administrative offices are closing or the inability to attend live trainings (e.g. Illinois has extended renewals through September 30 if the licensee was to renew between March 1-July 31).