Telehealth Compliance Issues

Post By: Raj Shah, Senior Regulatory Attorney, and Baylee Culverhouse, Risk Intern at MagMutual Insurance Company

The COVID-19 pandemic has created new and emerging telehealth compliance issues—relaxing standards in certain areas while increasing the need for greater compliance planning and implementation in others. This blog post specifically discusses certain compliance issues with respect to three telehealth issues: (1) practicing telemedicine across state lines; (2) informed consent; and (3) relaxed controlled substances prescribing.

Practicing Telehealth Across State Lines

Generally, telehealth providers must be licensed in every state in which they practice medicine. However, in response to the current COVID-19 pandemic, certain states have relaxed this requirement and are allowing physicians to practice across state lines. For example, the Georgia Composite Medical Board is now granting temporary licenses to physicians licensed in good standing by equivalent boards in other states to help with this public health emergency. Therefore, a telehealth provider licensed in Kentucky who wants to render telehealth services to patients in Georgia could apply for a temporary license from the Georgia Composite Medical Board. For a complete list of states that have relaxed or waived certain physician licensure requirements, the Federation of State Medical Boards (FSMB) maintains an updated list here under State Emergency Declarations and Licensing Waivers.

Additionally, if a physician assistant (PA) or advanced practice registered nurse (APRN) will be providing the telehealth services under the supervision of physicians, organizations may be required to notify their state’s medical board. Contact your state’s medical board for more information.

Consent for Telehealth Patients

Though many states are relaxing their licensure requirements, healthcare providers must still obtain and document the patient’s informed consent for the telehealth services. Informed consent is more than just signing a form. Telehealth providers must explain the risks and benefits of receiving telehealth services, along with any information reasonably necessary to obtain effective consent.

Telehealth providers are still required to follow the consent requirements of their payers. For example, some state Medicaid programs require written consent, while other commercial payers may allow verbal consent.

DEA Guidance in Light of COVID-19

Further, the Drug Enforcement Administration (DEA) has issued guidance allowing DEA-registered practitioners to issue prescriptions for controlled substances to patients via telehealth. While generally a practitioner must conduct an in-person medical evaluation before issuing a prescription to the patient via telehealth, this requirement is waived during the COVID-19 Public Health Emergency, if the following three conditions are satisfied:

(1) the practitioner issues the prescription for a legitimate medical purpose in the usual course of his/her professional practice;

(2) the telehealth communication is conducted using an audio-visual, real-time, two-way interactive communication system (such as FaceTime or Skype); and

(3) the practitioner is acting in accordance with applicable Federal and State law.

As long as these three conditions are met, the practitioner may issue the prescription using any DEA-approved methods of prescribing, including electronically or by calling the prescription into the pharmacy. The updated DEA guidance regarding prescribing controlled substances via telehealth can be found here.

Compliance Tips for Telehealth during COVID-19 Crisis:

• Develop a monitoring plan to stay up to date with the constantly changing state and federal guidelines regarding the provision of telehealth services.
• Confirm providers have consulted the guidelines for each individual state in which they intend to provide telehealth services before providing telehealth across state lines.
• Develop a quick, easy-to-read list of common payers’ informed consent requirements for providers to reference on a patient-by-patient basis. If the patient’s payer allows verbal consent, make sure the physician records and documents the patient’s verbal consent as part of the patient’s telehealth visit.
• Monitor a certain number of provider visits to ensure that providers are trained in informed consent.

Confirm that providers issuing prescriptions for controlled substances via telehealth during the COVID-19 pandemic are aware of the new DEA Guidelines. Develop a monitoring plan to stay up to date with any changes to these guidelines.