As Telehealth Waivers Expire, Now What?

Telehealth waivers issued during the COVID-19 pandemic that loosened government regulations and reimbursement requirements have or will be coming to an end in many states.

In Florida, Gov. Ron Desantis’ executive order declaring a public health emergency expired on June 26. Waivers allowed for the use of non-compliant platforms such a FaceTime. The Florida waiver also allowed physicians to prescribe controlled substances to existing patients via telehealth and to re-certify patients using medical marijuana. It also allowed out-of-state healthcare providers to perform telehealth services to patients in Florida even if they were not licensed here.

The Florida waivers can be found here 20-002 and here 20-003.

These waivers allowed providers to better serve their patients, while at the same time protect them from contracting COVID-19.

Because the expiration of the waivers came without advance notice, healthcare providers who have relied on them need to be aware of what they can and cannot do via telemedicine so they don’t find themselves in violation of the law.

During the 2019 legislative session, Florida passed a law authorizing out-of-state healthcare practitioners to perform telehealth services for patients in Florida.

The law became effective on July 1, 2019. Florida Law §2019-137: (a) states “a healthcare professional not licensed in this state may provide healthcare services to a patient located in this state using telehealth if the healthcare professional registers with the applicable board, or the department if there is no board, and provides healthcare services within the applicable scope of practice established by Florida law or rule.”

You can read more about that here.

A report published by The Commonwealth Fund found that 22 states changed laws or policies during the pandemic that allowed for more robust coverage of telemedicine.

Increased Demand Leads to Push for National Legislation

The pandemic brought to light the demand and need for telehealth services. That fact has not been lost on Congressional lawmakers, some of whom want to make the flexibilities permanent.

For example, in May, Congressman Jason Smith (R-MO) and Congressman Josh Gottheimer (D-NJ) introduced the Permanency for Audio-Only Telehealth Act, legislation to help ensure Medicare recipients who cannot access the video component during telehealth visits are able to access care through audio-only.

Also in May, U.S. Senators Tom Carper (D-Del.) and John Cornyn (R-Texas), both members of the Senate Finance Committee, introduced legislation that would help states expand telehealth options for low-income Americans, especially children. The Telehealth Improvement for Kids’ Essential Services (TIKES) Act of 2021 would provide guidance and strategies to states on how to effectively integrate telehealth into their Medicaid and Children’s Health Insurance Program (CHIP) programs, and research how telehealth expansion can impact health care access, utilization, cost, and outcomes.

In June, Congresswoman Liz Cheney (R-WY) introduced The Advancing Telehealth Beyond COVID-19 Act, which would allow the Secretary of the Department of Health and Human Services to waive the originating site and geographical limitations beyond the public health emergency period that was specified in the CARES Act. It also would make permanent the telehealth coverage at Federally Qualified Health Centers (FQHC) and Rural Health Clinics (RHC) which would give rural providers the ability to serve patients remotely while being properly compensated for their work. And, it would remove restrictions that limit healthcare providers’ ability to provide access to smart devices and innovative digital technology to their patients.

For a full list of proposed legislation designed to improve access to telehealth services click here.

The Florida Medical Association has said it will push for telehealth expansions during the next legislative session.

As the telehealth landscape continues to evolve, it’s imperative that providers know what they can and cannot do via telehealth and what they can and cannot bill for.

The Health Law Offices of Anthony C. Vitale assists providers with a variety of matters relating to the provision of telemedicine including contracts and compliance. Give us a call at 305-358-4500, or send an email to info@vitalehealthlaw.com and let’s discuss how we might be able to assist you.

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