Many of our healthcare and business law firm’s clients have an interest in offering a practice that offers more flexibility to patients when it comes to in-person versus virtual visits. Deciding to offer telemedicine visits to your patients not only requires acquiring a video product that satisfies HIPAA and other privacy requirements but requires compliance with numerous laws at the state and federal level. This post analyzes potentially relevant federal laws and rules that currently apply during the Public Health Emergency (“PHE”). A subsequent post will provide an overview of state law considerations. If you have questions about telemedicine rules or would like to discuss this blog post, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, email@example.com. You may also learn more about our law firm by visiting www.hamillittle.com.
State laws provide the majority of laws and regulations governing telemedicine visits. There are, however, two potentially relevant federal rules that a medical practice should consider before offering telemedicine: Medicare rules and the Ryan Haight Act.
There are specific Medicare rules that apply during the PHE and those that begin the day after they end. A forthcoming blog post will further discuss the Medicare rules that begin the day after the public health emergency ends. Because we are still in the PHE, however, this post will be limited to discussing the currently applicable Medicare rules.
As summarized clearly on CMS’s website and updated 2/16/2022, here is CMS’s stance on the telehealth visits Medicare will reimburse during the PHE:
Medicare telehealth services include many services that are normally furnished in-person. CMS maintains a list of services that may be furnished via Medicare telehealth. This list is available here: https://www.cms.gov/Medicare/Medicare-General-Information/Telehealth/Telehealth-Codes. These services are described by HCPCS codes and paid under the Physician Fee Schedule. Under the emergency declaration and waivers, these services may be provided to patients by physicians and certain non-physician practitioners regardless of the patient’s location. Medicare also pays for certain other services that are commonly furnished remotely using telecommunications technology, but are not considered Medicare telehealth services. These services can always be provided to patients wherever they are located, and include physician interpretation of diagnostic tests, care management services, and virtual check-ins.
Ryan Haight Act
The Federal Ryan Haight Act applies when providers conduct telemedicine visits and prescribe controlled substances. Under the federal Ryan Haight Act, prescribing controlled substances generally requires that the Practitioner/prescriber conduct at least one in-person medical evaluation of the patient. 21 U.S.C. Sect. 829(e) (“Controlled substances dispensed by means of the Internet”).
One exception to the general rule requiring in-person medical evaluation is when the Secretary of HHS declares a public health emergency under 42 U.S.C. 247d. 21 C.F.R. Section 1300.04(i)(4). Because there is currently a public health emergency, the exception applies. While the PHE continues, the exception will apply and provides as follows:
DEA-registered practitioners in all areas of the United States may issue prescriptions for all schedule II-V 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; and
- The practitioner is acting in accordance with applicable Federal and State laws.
As is clear from the above, medical practices must be thoughtful before offering healthcare telemedicine visits. If you have questions about telemedicine rules or would like to discuss this blog post, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, firstname.lastname@example.org. You may also learn more about our law firm by visiting www.hamillittle.com.
*Disclaimer: Thoughts shared here do not constitute legal advice.