As technology has advanced over the years, there has been a corresponding push for virtual visits with health care providers.  In fact, many state boards of medicine and other regulatory agencies have sought to amend regulations and guidances to make telehealth a reality for patients across the U.S.  However, despite the technical allowance for telehealth, many regulatory, privacy, and financial barriers have stood in the way of allowing telehealth to be the norm — that is, until the COVID-19 pandemic.

Once shelter-in-place orders went into effect across the country, there was great appeal to patients in being able to still get medical treatment and advice without leaving the safety of their homes.  Thus, federal and state regulators acted quickly to amend regulations, issue temporary waivers, and publish guidance documents setting out ways patients could communicate with, and be treated by, their providers virtually.  Many regulators even relaxed certain licensing requirements to allow providers a broader reach so that they could treat patients located in other states via telehealth.

The outcome of this quick call to action was a huge boom in telehealth — a week before the shelter-in-place orders went into effect, Medicare reported there were 11,000 telehealth visits in one week.  One month later, this number skyrocketed to 1.3 million in a single week.  The apparent success of telehealth thus far has left many wondering why this mechanism was not widely utilized before the pandemic, and the answer likely comes down to data protection and insurance.

Specifically, first, the Health Insurance Portability and Accountability Act (HIPAA) requires health care providers and insurers to protect patient data and the electronic transmission of the same.  Without the assistance of regulatory legal counsel to advise on how best to navigate privacy laws in an arguably new and nuanced space, many health care providers opted away from telehealth rather than run the risk of violating HIPAA.  Second, until the pandemic, Medicare and Medicaid would not cover telehealth services unless, for example, the patient was in a rural area or suffered a rare condition.  Now, during COVID-19, the U.S. Department of Health and Human Services (HHS) has eased many of the rules that previously made telehealth visits financially difficult.

Although many of the regulation amendments, waivers, and guidances are allegedly temporary and only in effect during the COVID-19 crisis, many industry stakeholders are wondering if they might outlast the HHS’s lift of the public health emergency.  As the state boards and federal agencies continue to adapt to these unprecedented times, we recommend that health care providers stay attuned to the laws of the states in which both they, and their patients, are located, as well as public postings and guidance documents released by federal agencies, such as the U.S. Food & Drug Administration.  Should you have any questions related to telehealth during COVID-19 and in the future, please do not hesitate to reach out to the health care attorneys at Reed Smith.