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FMG Law Blog Line

Telemedicine in a Time of Crisis

Posted on: March 31st, 2020

By: Shaun Daugherty

Social distancing has become a new phrase in our lexicon which has specific meaning and pervasive general understanding within the population.  Telemedicine seems like the ideal format for delivery of certain medical services during the emergency period caused by COVID-19.  However, pre-emergency regulations, restrictions and requirements for qualification and reimbursement to telehealth providers greatly reduced access to these kinds of services.  The CARES Act has taken aim at suspending many of these prior limitations on access and reimbursements to open much needed medical care to those that are in the most need. 

During the existence of the current medical emergency, Medicare beneficiaries are temporarily granted access to telemedicine services in several ways.  Previously, to provide medical services via telemedicine, the provider must have seen and treated the patient within the last three years.  In addition, the pre-emergency restrictions also required stringent real-time audio-visual technology be available on both ends of the service.  The new law temporary lifts and eases these restrictions and opens up the options for services to a broader base of patient.  Now, both new patients and existing patients can take advantage of telemedicine.  No longer does one need to be an established patient for a telemedicine visit.  Additionally, the provider does not have to be compliant with the strict real-time audio-visual requirements as before and things such as FaceTime or Skype calls are permissible. In certain instances, audio only visits are allowed as long as no images are being reviewed.  This is especially useful in those places where there may be limitations in the technology available as well as the functional limitations of those receiving the care. 

The new law temporarily allows for hospice recertification without a face-to-face visit and home dialysis patients to receive periodic evaluations using the telehealth technologies.  The geographic or location restrictions for providers of telemedicine services are also temporarily lifted.  Previously, the regulations limited reimbursements for Rural Health Clinics (RHC) and Federally Qualified Health Clinics (FQHC) to only those services defined as a face-to-face encounter.  The current Act lifts these restrictions and allows for Medicare to reimburse for telemedicine services provided by these RHCs and FQHCs.  The Act also provides the HHS Secretary with the authority to relax additional statutory restrictions on telehealth services to be covered by Medicare. 

Of the $2 trillion total allocated in the CARES Act, $14.4 billion has been specifically earmarked to increase the access of telemedicine to patients of the Veterans Administration facilities throughout the country.  An additional $2.15 billion has been allocated to the Department of Veterans Affairs Information Technology to improve the infrastructure and increase the capabilities to deliver these types of healthcare services.  This is on top of the $27 billion allocated to the HHS’ Public Health and Social Services Emergency Fund to address increased access and infrastructure for telehealth generally. 

Opening the access to telemedicine services will hopefully help reduce the current strain on the healthcare communities by allowing providers to access patients remotely without exposing themselves or their patients to risks that could be avoided.  Those patients in remote or otherwise restricted locations can be screened and, in some instances, treated with the use of a smartphone.   While these measures are only temporary, the hope of many organizations that promote telemedicine is that it will pave the way for a more meaningful method of delivery of telemedicine services into the future. 

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CCPA, the CARES Act, Law Enforcement and the viruses’ impact on the Construction Industry. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

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