COVID-19: Legal updates regarding the use of telemedicine

The ongoing coronavirus/COVID-19 pandemic is causing incredible new challenges and stresses to all Americans (and especially health care providers) every day. Simultaneously, governments at every level continue to issue new statutory and regulatory responses, offering providers new opportunities to confront and overcome these challenges.

Below is a topical guide for expanding the use of telemedicine as the United States grapples with the COVID-19 pandemic. For questions regarding how these changes may affect you, please contact the health care attorneys at Hagwood & Tipton.

MISSISSIPPI: Out-of-state physicians using telemedicine

On March 15, 2020, the Mississippi State Board of Medical Licensure issued an emergency proclamation encouraging all physicians to utilize telehealth with no enforcement of any statute, rule or regulation requiring a prior personal examination before prescribing medications (including controlled substances) and authorizing out-of-state physicians to utilize telehealth to treat patients in Mississippi without first obtaining a Mississippi license, so long as they hold an unrestricted license in the state where they practice and are not currently under investigation.

On March 16, 2020, the Mississippi Board of Nursing followed the state board of medical licensure. It issued an emergency proclamation authorizing the following:

• All nurse practitioners/APRNs with controlled substance prescriptive authority may utilize telehealth with no enforcement of any statute, rule or regulation requiring a prior personal examination before prescribing medications (including controlled substances).
• Out-of-state APRNs may utilize telehealth to treat patients in Mississippi without first obtaining a Mississippi license, so long as they hold an unrestricted license in the state where they practice and are not currently under investigation. 

On March 24, 2020, the Mississippi State Board of Medical Licensure issued an amended proclamation of its prior proclamation, which clarifies that out-of-state physicians may utilize telemedicine when treating patients in Mississippi with whom they already have a pre-existing doctor-patient relationship.

Prescribing controlled substances via telemedicine

• DEA – On March 20, 2020, the Drug Enforcement Agency issued prescribing rules and guidance regarding controlled substances, particularly through the use of telemedicine.
• Alabama – On March 23, 2020, the Alabama State Board of Medical Examiners and State Board of Pharmacy issued a joint notice of enforcement discretion regarding prescribing of controlled substances via telemedicine.

CMS waivers

On March 17, 2020, CMS issued a variety of waivers related to the provision of telehealth services, including:

• Eliminating restrictions on where patients may be located when receiving services (including in their homes)
• Expanding the list of practitioners permitted to provide telehealth
• Granting flexibility in reducing or waiving cost-sharing for telemedicine visits
• Relaxing enforcement of HIPAA security violations for telehealth

On March 30, 2020, President Trump directed CMS to make sweeping regulatory changes, including temporary regulatory waivers and new rules “to equip the American health care system with maximum flexibility” to respond to the ongoing pandemic. These temporary changes apply immediately across the entire U.S. health care system for the duration of the emergency declaration.

The announced temporary actions include but are not limited to Hospitals Without Walls, which can increase hospitals’ patient capacity in part by further promoting telehealth services.

Federal stimulus for health care providers regarding telehealth

On March 27, 2020, the U.S. House of Representatives approved a stimulus package, and President Trump signed the bipartisan H.R. 748 – the Coronavirus Aid, Relief, and Economic Security (CARES) Act – into law. The act includes major provisions relevant to health care providers, including $150 billion for hospitals to invest in equipment and infrastructure, which includes reauthorizing grant programs that promote the use of telehealth technologies, including the expansion of telehealth access, insurance coverage, rural telehealth access, Medicare reimbursement for services and others.

HIPAA

• CMS – On March 17, 2020, the Centers for Medicare and Medicaid Services issued notifications of HIPAA enforcement discretion for telehealth services.
• HHS – On March 20, 2020, the Health and Human Services Office for Civil Rights issued guidance for telehealth and HIPAA during the COVID-19 national emergency via a press release and FAQs document.

Assistance with these or other health care matters

For further questions or to request assistance with these or any other health care legal matter, call Hagwood & Tipton at (601) 707-4039. You may also email Julie Mitchell or Philip Chapman directly.