Healthcare GCs look at telehealth compliance in the Pandemic and beyond

Healthcare General Counsel Advice

Featured speakers: Marcus Hughes, Associate General Counsel, UMass Memorial Health; Meg Cosgrove, Associate General Counsel, Beth Israel Lahey Health. Moderated by Jeremy Sherer, Healthcare Attorney, Hooper, Lundy, & Bookman 

Hughes and Cosgrove addressed the Massachusetts Health and Hospital Association’s Healthcare Legal Compliance Forum in December 2021. This recap of their remarks looks at how they worked with providers to stay in compliance as demand for telehealth surged with the Pandemic. It also looks at how they are preparing for the regulatory changes that will come with the end of the public health emergency.  

Interstate licensing for telehealth

Hughes said his advice on interstate licensing for telehealth has evolved as states rescinded their waivers. “As we move toward the late stage of the pandemic, we’re more cautious and want providers to follow pre-pandemic rules. This might mean that they need a license in the states where the patients are located.” He asks providers to work with Compliance and the General Counsel’s office to assess the risk.  

“We’re now more informed by the risk we’re seeing in enforcement and compliance actions,” Cosgrove said. Her providers care for a lot of college students and snowbirds who look to them for prescription refills and ongoing care when they’re away from home. “This is such a cultural shift for our providers- they want to be responsive to long-established patients, and things they might have done in the past need to be looked at more closely now.” She noted that there is a difference in risk between refilling a blood sugar medication for a long-established patient who’s in Florida for four weeks versus giving the same medication to a new patient who’s away for six months and has a new blood sugar concern. The challenge is providing clear guidance: “Doctors want clean lines, but as a legal practitioner it’s very difficult to provide that because so much depends on the situation,” she said. 

Resource constraints and bright lines

Ultimately, Cosgrove’s organization drew a bright line around specific states. “We support out of state telehealth in Florida and New Hampshire because that’s what we can sustain and do effectively, and it’s where many of our patients go.” 

It was a huge shift for the providers, but the key to making it work was involving providers in the decision making. “We had amazing medical directors and clinicians who could inform our approach,” she said. “They helped us look at highly clinical scenarios and draw the bright lines.”  

Hughes also has to help providers balance their desire to help their patients with the realities of interstate licensing. “It’s a huge risk to a provider to be found to be practicing across state lines unauthorized. They risk their license as well as their medical staff appointment at the hospital and other affiliations.”  

He noted that there is a common belief that there is a national framework for remote care, but there isn’t. “Now that we’re in the late stage of the pandemic, we have to educate our staff to dispel some of the myths that are out there. And we have to make sure they know that the COIVD waivers are coming to an end.”  

Going forward

Cosgrove noted that it difficult to settle on a long-term strategy because we still have the flexibility that comes with the federal PHE. Still, she’s dealing with evolving state waivers while the federal PHE is still in effect. She’s also getting ready for enforcement actions with audits. And her organization is working to influence Massachusetts to join the interstate medical licensing and nursing compacts.  

“I’m glad we can keep audio only telehealth, so we don’t exacerbate equity and access issues,” she said. Still, the reimbursement landscape will affect their offerings long term. “Where does telehealth fit into our model if Medicare is reimbursing only 50 percent or less for the telehealth visit?” 

Still, Hughes’s biggest takeaway from the past two years is that “whatever states we’re in now, telehealth is not going away.” Whether for outpatient monitoring, behavioral health or specialist follow ups, he expects to see telehealth continuing to grow.  

YouCompli sponsored MHA’s 2021 Healthcare Legal Compliance Forum in 2021. Current and former law enforcement officials, healthcare compliance practitioners, attorneys and consultants gave a broad view of the priorities, challenges and opportunities facing the Compliance profession. Read a summary of all the sessions. To access the full session recording, please contact the Massachusetts Health and Hospital Association. 

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