In light of the increasing number of Michigan residents testing positive for COVID-19, as well as federal, state and local edicts pertaining to social distancing, physician practices are looking to telemedicine as a way to provide ongoing care while protecting staff and patients. MSMS commends physicians and all members of the health care team for your dedication to meeting your patients’ ongoing medical needs in a manner that provides the least amount of exposure risk to COVID-19. Whether you’re just getting started or are well-versed in the art of telemedicine, MSMS has identified several resources to assist you with practice implementation options and current billing and compliance guidance.

Practice Implementation

• Contact your EHR vendor to see if they support telemedicine visits. You may need to consider outside resources to be able to offer these visits.
• Connect with your Physician Origination to see if there are any recommendations or resources that are being used locally with other practices.
• Determine what policies/procedures you need to create or update to enable staff to implement these changes smoothly.
• Consider what staff members will lead this change, and clearly define roles other staff members to ensure a smooth implementation.
• Determine when telehealth visits will be available on the schedule (i.e. throughout the day intermixed with in-person visits or for a set block of time specifically devoted to virtual visits).
• Set up a defined space to conduct telemedicine visits. Be sure to have access to all necessary equipment and supplies to conduct the visits.
• Work with your EHR vendor to ensure you and your staff have training on how to conduct and document these visits properly to ensure continuity of the medical record 
• Clearly communicate with your patients how you are conducting these visits and what to expect from this type of interaction. Additionally, post announcements on your website, patient portals and other patient-facing communications.

MSMS’s Legal Alert Telemedicine in Michigan: What Physicians Need to Know includes information on Michigan’s law, as well as frequently asked questions.

Other resources to help you get started include:

• MSMS COVID-19 Resource Center (includes easy to find links to several telehealth resources)
• AMA Quick Guide to Telemedicine in Practice
• American Telehealth Information Management Association Telemedicine Toolkit
• YouTube Video on Telehealth Basics

Updated Coding and Billing Information

Payment policies around telehealth and telemedicine are unique to each payer. In response to the COVID-19 pandemic, several payers including Medicare and Medicare have been modified in support of social distancing goals to minimize face-to-face contact whenever possible. MSMS Reimbursement Advocate Alerts (RAAs) will be issued as new updates and information on payer policies become available. See the March 2020 RAA-Coding Alert for an update on COVID-19 payment policies. Key information to know, in addition to whether the visit is a covered benefit, is whether the patient is able to connect from his or her home (originating site).

On March 12, 2020, Governor Whitmer announced Michigan’s Medicaid beneficiaries will have expanded access to telemedicine. Per her press release:

“Governor Gretchen Whitmer announced that her administration will expand access to telemedicine for Michiganders by immediately allowing Medicaid beneficiaries to receive services in their home while the state combats the spread of Novel Coronavirus (COVID-19). In addition, insurance plans like Blue Cross Blue Shield of Michigan, Blue Care Network of Michigan, Priority Health, Meridian, CVS Health, McLaren, and Health Alliance Plan also announced that they will cover and encourage the use of virtual care and telemedicine, as well as waive cost-sharing for COVID-19 testing.”

View the recently released MSA Bulletin 20-12, “COVID-19 Response: Relaxing Face-to-Face Requirement,” for specific details.

The Centers for Medicare and Medicaid Services (CMS) has also expanded access to telemedicine services for all Medicare beneficiaries, not just those that have novel coronavirus, for the duration of the COVID-19 Public Health Emergency. In addition to existing coverage for originating sites including physician offices, skilled nursing facilities and hospitals, Medicare will now make payments for telehealth services furnished in any healthcare facility and in the home. See the CMS Medicare Telehealth Health Care Provider Fact Sheet for more information.

Updated Compliance Guidance

Along with recent federal and state emergency declarations, certain regulations related to the provision of services via telehealth have been relaxed. Most notably, the U.S. Department of Health and Human Services – Office of Civil Rights (OCR) issued a “Notice of Enforcement Discretion for Telehealth” affecting Health Insurance Portability and Accountability Act (HIPAA) provisions and everyday communications technologies such as FaceTime or Skype. The U.S. Department of Justice – Drug Enforcement Administration (DEA) also issued updated guidance regarding the use of telemedicine and prescribing controlled substances during a public health emergency.

OCR HIPAA Notice

According to the Notice, OCR “will exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency.”

Key takeaways include:

• Physicians and other covered health care providers will be permitted to communicate with patients, and provide telehealth services, through certain remote audio or video communications technologies that aren’t considered to be fully compliant with HIPAA requirements. Importantly, while Medicare virtual check-ins and brief follow-up communications may be conducted via telephone or through other audio or video communication technologies, to qualify as a “telehealth” service under Medicare, Medicaid, DEA, and other payer standards, communication with patients must still be conducted using an audio and visual, real-time, two-way interactive communication system, unless specified otherwise. 
• Effective immediately, OCR will not enforce penalties for noncompliance with HIPAA provisions related to “the good faith provision of telehealth during the COVID-19 nationwide public health emergency.” 
• OCR will not impose penalties against covered health care providers for the lack of a HIPAA business associate agreement (BAA) with video communication vendors.
• Enforcement discretion applies to the use of non-public facing remote audio or video communication products available to communicate with patients that are used in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency. Examples of such products include “applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype.”
• Public-facing communication applications including, but not limited to, Facebook Live, Twitch, and TikTok are not covered by the notice and should not be used in the provision of telehealth.
• This exercise of discretion applies to telehealth provided for any reason, regardless of whether the telehealth service is related to the diagnosis and treatment of health conditions related to COVID-19.
• If using non-public facing communication applications, OCR encourages physicians and other covered health care providers to enable all available encryption and privacy modes when in use and notify patients that such third-party applications potentially introduce privacy risks. 

Irrespective of the inclusion or omission of permissive language in the notice, there are certain best practices physicians and other covered health care providers should consider when utilizing non-public facing remote audio or video communication applications such as:

• Making sure patients understand there are privacy and security risks when using third-party applications and documenting the patient was notified of and accepted the privacy and security risks.
• Obtaining and documenting the patient’s informed consent to the telemedicine encounter, as well as the establishment or existence of a bona fide physician-patient relationship. 
• Investigating the availability of additional telehealth privacy protections while using video communication products.
• Determining which products or applications are HIPAA compliant, limiting use to only those products, and entering into HIPAA business associate agreements with vendors of such communication products. 
• Understanding that the Enforcement Discretion is currently tied to the COVID-19 nationwide public health emergency. Therefore, it is expected that the allowances in this notice will cease at a future date.

DEA Telemedicine Guidance

The DEA has also issued guidance on the prescribing of controlled substances via telemedicine during a public health emergency. The guidance acknowledges that while a prescription for controlled substances issued by means of the internet (including telemedicine) must generally be predicated on an in-person medical evaluation, the Controlled Substance Act provides an exemption to this requirement when the Secretary of Health and Human Services has a declared a public health emergency. The guidance confirms that in response to the COVID-19 pandemic, a public health emergency was declared on January 31, 2020. Accordingly, DEA-registered practitioners may issue prescriptions for controlled substances for whom they have not conducted an in-person medical evaluation if 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
• The practitioner is acting in accordance with applicable federal and state law. 

Physicians must still comply with existing Michigan controlled substance laws when prescribing controlled substances to a patient via telemedicine, including, but not limited to, establishing a bona fide prescriber-patient relationship (which may be done in-person or through telehealth), obtaining and reviewing a MAPS report (if applicable), education on the risks of opioids and obtaining a signed consent/acknowledgement form (if applicable), performing a thorough risk assessment, and providing or referring the patient for follow-up care. If obtaining urine drug screenings is not feasible, a more thorough assessment of the patient’s risk for abuse and diversion should be undertaken and documented in the medical record. The U.S. Department of Justice - Drug Enforcement Agency (DEA) has also issued guidance on the prescribing of controlled substances via telemedicine. 

Visit the DEA’s COVID-19 Information Page for more information and guidance.