Legal Bulletins

This article was updated Tuesday, March 24, 2020, to include new information on the use of telemedicine.

The regulatory landscape at the state and federal levels is changing rapidly in response to the COVID-19 pandemic (the Pandemic).

The following Q&A breaks down some of the current issues affecting health care during the Pandemic.

Q: HOW IS MARYLAND ENCOURAGING THE USE OF TELEMEDICINE?

A: On March 19, 2020, Governor Hogan signed the COVID-19 Public Health Emergency Protection Act of 2020 into law. This law allows the governor to take additional steps to facilitate the use of telemedicine during the Pandemic at his discretion. Governor Hogan now can set telemedicine protocols, including allowing out-of-state practitioners to provide telemedicine to patients in Maryland and ordering the Maryland Department of Health to reimburse for telemedicine services for Medicaid patients. In the following days, the governor issued an executive order giving the Maryland Secretary of Health the flexibility to allow for audio-only telemedicine.

Effective March 21, 2020, Maryland providers can offer telemedicine via audio-only format to Maryland Medicaid patients, as a last resort, if the patient or provider does not have access to a video platform. Patients must give informed consent to be treated via audio-only telemedicine and must also acknowledge the limitations of confidentiality in this format.

The situation is fluid and additional guidance may be forthcoming.

Q: HAS THE MARYLAND GENERAL ASSEMBLY TAKEN STEPS TO ADDRESS TELEMEDICINE?

A: The General Assembly passed legislation during the shortened 2020 session specifically expanding access to telemedicine in Maryland that is awaiting Governor Hogan’s signature to go into effect. This legislation will allow providers to offer new and existing patients telemedicine services for conducting initial consultations and prescribing medications, among other needs that are consistent with the provisions of the provider’s licensure. If this legislation goes into effect, providers will only be able to prescribe opioids via telemedicine to patients in a health care facility and the provider must comply with other laws and regulations. However, this allows providers more flexibility to prescribe to patients located elsewhere during a state of emergency, such as the current Pandemic.

Q: ARE PRIVATE PAYERS ENCOURAGING TELEMEDICINE?

A: Many private payers are taking steps to expand access to telemedicine. For example, CareFirst BlueCross BlueShield is encouraging providers to use telehealth where available, noting the federal governments relaxed stance on acceptable platforms, including Skype and Apple’s FaceTime. CareFirst has announced that, at least through April 17, 2020, primary care, OB/GYN and family practices as well as pediatric physicians and nurse practitioners can provide telemedicine through an audio-only delivery if the provider or the patient does not have access to any video communication platform. CareFirst will pay providers a $20 flat fee for this service. CareFirst will continue to evaluate this temporary policy and consider extending it during the Pandemic.

Other private payers are making similar allowances for telemedicine so providers should continue to check for new updates and guidance regularly.

Q: How is the federal government encouraging providers to use telemedicine during the Pandemic?

A: Effective as of March 6, 2020, the Centers for Medicare and Medicaid Services (CMS) issued a waiver that allows Medicare to pay for telemedicine services in place of common in-office visits across the country in all settings, including to patients in their homes. Providers, including doctors, nurse practitioners, physician assistants and clinical social workers, can provide services via an interactive audio-video platform that allows for real-time, two-way communication. These interactions will be paid at the same rate as regular, in-person visits. Further, Medicare typically requires that a provider have a prior, existing relationship with a patient before offering services via telehealth. However, for the duration of the Pandemic, the U.S. Department of Health and Human Services (HHS) will not conduct audits to determine if a provider has a prior, existing relationship with the patient for these types of outpatient visits, or emergency department or initial inpatient consultations.

Q: Do providers have to follow all HIPAA requirements when providing services via telehealth during the Pandemic?

A: On March 17, 2020, HHS announced that it would not impose penalties against providers who used audio or video communication technology that does not meet all of the privacy and security requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) as amended by the Health Information Technology for Economic and Clinical Health to provide telehealth to patients during the crisis. This means that any provider can use any nonpublic facing-remote communication product, such as Apple’s FaceTime, Google Hangout, Facebook Messenger video chat or Skype, to communicate with patients whether the service is related to the diagnosis and treatment of conditions related to COVID-19 or not. Providers are encouraged to notify patients that the third-party services introduce security and privacy risks.

Q: How has Maryland loosened interstate practitioner licensing restrictions in response to the Pandemic?

A: On March 16, 2020, Governor Hogan issued an executive order relating to various health care matters. Under this order, it is easier for out-of-state practitioners to work in a Maryland health care facility during the duration of the current state of emergency. A health care facility includes hospitals, freestanding medical facilities, ambulatory surgery centers and home health agencies. It can also include any other facility the Secretary of Health of the State of Maryland designates for treatment, isolation and/or quarantine during the Pandemic. Practitioners must have a valid, unexpired license from another state and may work in Maryland to allow a “health care facility to meet required staffing ratios or otherwise ensure the continued and safe delivery of health care services.” Professionals who typically require a temporary practice license to work in Maryland, such as nurses, are still required to apply for a temporary license within 10 days of starting work at a Maryland health care facility during the Pandemic.

Q: How does Governor Hogan’s order impact the scope of practice for practitioners?

A: During the state of emergency, health care providers, including physician assistants and nurse practitioners, are allowed to engage in activities at a health care facility they are not regularly authorized to perform under their existing license if the following conditions are met:

• The activity must be necessary to meet the health care facilities required staffing ratios or allow for the continued and safe delivery of health care;
• A qualified supervisor must determine that the practitioner is qualified to engage in the particular activity; and
• The supervisor must “reasonably supervise” the activities.

Please contact the Gordon Feinblatt Health Care team if you have questions about how the current status of any regulations or executive orders impacts your practice.

Barry F. Rosen
410-576-4224 • brosen@gfrlaw.com

Alexandria K. Montanio
410-576-4278 • amontanio@gfrlaw.com

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