Telehealth Eases Pressure On An Overtaxed System 

In the spring of 2020 — a time of exhausted doctors and nurses, equipment shortages, and makeshift morgues in refrigerated container trucks — health care providers turned to telehealth and telemedicine to safely interact with patients and ease some of the pressure on an overtaxed system.

The rise of telehealth — which includes videoconferencing, store-and-forward imaging, streaming media, and other communications — is now a success story.

But as usual with all things health care, it was complicated. Health care providers, state and federal authorities, and insurance companies had to work together to relax rules and develop systems to handle the surge in remote medicine.

“In the first months of COVID, late March or early April 2020, I had clients who had never used telemedicine, and all of a sudden, 90 percent were using it,” said Jayme R. Matchinski, an attorney with Greensfelder Hemker & Gale, P.C., in Chicago who assists health care providers with telehealth programs and regulatory compliance and reimbursement. “It’s fair to say that the pandemic accelerated the use of telehealth by at least a decade.”

1135 Waiver

Telehealth, “really was the solution,” said William A. Tanenbaum, a partner with Moses & Singer LLP in New York who is also the chair of the Practising Law Institute’s Health Care Technology 2021 program and co-chair of its Outsourcing 2021 program. “People didn’t have to go to hospitals, which were overwhelmed. It solved the problem immediately and solved it well, but to do that, there had to be changes in regulations and in the reimbursement structure.”

One of the most important measures was the so-called 1135 waiver, which refers to a section of the Social Security Act that allows the HHS secretary to waive some of the usual requirements for a provider to be reimbursed by Medicare, Medicaid and the Children’s Health Insurance Program (CHIP). Section 1135 only comes into play if the president has declared a disaster or a national emergency like the pandemic.

According to the Centers for Medicare & Medicaid Services (CMS), waived items include rules about the location of service, requirements that physicians and other health care professionals be licensed in the state where they are providing services, preapproval requirements, limitations on out-of-network providers, and performance deadlines and timetables, which may be adjusted but not waived.

“The practice of medicine across state borders was relaxed,” Tanenbaum noted. “This didn’t just affect patient care, but involved research with a human subject that could be done using remote technology, accelerated by COVID.”

HIPAA

Almost every aspect of health care is affected by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), a federal law that emphasizes guarding the privacy of personal health information. Telehealth is no exception. During the pandemic, the Office of Civil Rights — the division of HHS that enforces HIPAA — announced it would give remote health care services a boost by suspending enforcement of certain rules and forgoing penalties.

OCR issued a “Notice of Enforcement Discretion,” which covers all services that can be provided through telehealth during the national emergency. It will remain in effect until the HHS secretary declares that the public health emergency is over. 

“That was a bold statement by OCR, in my opinion, to say during this time we understand how important telehealth is,” Matchinski said. “It opened up a lot of opportunities between provider and patient, but it is fraught with challenges. Providers must protect the health information of patients when it is being transmitted, so nobody can hack in.”

Matchinski said a lot of her clients have strengthened the security of their portals to handle the increase in telehealth.

“I think even before the pandemic, when HIPAA was evolving, people were getting a lot more savvy about identity theft and patient identifiers, and making sure patient names, dates of service, and insurance information were secure. Protecting all those patient identifiers has been key,” she said. 

OCR issued a fact sheet which states that, whenever possible, providers need to use “non-public facing” remote communications products as one way to protect those all-important identifiers. By default, such products allow “only the intended parties to participate in the communication.”

They include platforms like Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Whatsapp video chat, Zoom, or Skype.

“Typically, these platforms employ end-to-end encryption, which allows only an individual and the person with whom the individual is communicating to see what is transmitted,” the fact sheet said.

Telehealth Applications

Even before the pandemic turned telehealth into a something of necessity, providers had been moving in that direction, Matchinski said. For example, remote monitoring and follow-up is already common for patients who’ve been given a CPAP device to treat sleep apnea.

Also, “right before the pandemic, CMS came out with new codes for end-stage renal disease,” Matchinski said, referring to the codes that are used in health care administration to match services with the proper billing and reimbursement. The rules were loosened as to the origination site of the treatment, she added.

“Medicare used to only reimburse for remote services in rural areas. Otherwise the place of service, in order to get reimbursed, had to be a Medicare-credentialed site like a hospital, a nursing home, or a doctor’s office.”

With the relaxation of rules during the pandemic, remote patient monitoring became more common. Matchinski mentioned cardiac patients whose vital signs can be checked remotely, as well as post-surgical oncology patients.

“A woman who has had surgery might take a picture of somewhere on her body and send it to the oncology department, and the doctor decides what the patient needs,” Matchinski explained

This process is known as store-and-forward, which was “always a tough issue in telemedicine because it wasn’t in real time, and there is the question of the origination site,” she added.

Often, reimbursement requires a correct “place of service” to be entered in the system, which is why the 1135 waiver became so important.

“Store-and-forward is a huge change,” Matchinski said. “The patient can take a picture and send it and the physician can later assess it.” 

This allows physicians to more efficiently use their time, she said, but the challenge is making sure store-and-forward is followed up in a timely manner. 

“If it’s an emergency, you don’t want a picture sitting in an email somewhere,” Matchinski continued. “A lot of my physician clients have done triage, using a nurse practitioner or physician’s assistant to look at the pictures and see who needs a quick follow up, if it’s an emerging or emergency issue.”

As for when the pandemic is truly over, Matchinski thinks some loosening of HIPAA enforcement and review on the telemedicine side could very well be permanent.

“It’s going to be a hybrid,” she said. “Some patients will want to go back to in-person and stop using telemedicine, but some patients really like being able to do remote care. I think it will be based on patient needs and preferences.”

Tanenbaum agrees with her assessment. Remote care “took off and the regulations will probably stay relaxed because the benefits are real,” he said. “COVID will have given a boost to the greater use of telemedicine.”

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Elizabeth M. Bennett was a business reporter who moved into legal journalism when she covered the Delaware courts, a beat that inspired her to go to law school. After a few years as a practicing attorney in the Philadelphia region, she decamped to the Pacific Northwest and returned to freelance reporting and editing.