How Have States Relaxed the Telemedicine Requirement of a Good Faith or Appropriate Prior Exam?

During the pandemic, working remotely has become the norm in most professions including the medical profession. Remote conferences mean both doctors and patients don’t have to leave home where they can be exposed to COVID-19. COVID-19 is especially prevalent in medical offices and hospitals because that is where the patients with COVID-19 go for help.

There are numerous state and medical board rules that governed telemedicine before the pandemic. Some of the rules involve the treatment of patients. Other rules involve writing prescriptions for patients.

Two common rules regarding treatment and patient involve whether:

• Doctors can provide telemedicine services and write prescriptions across state lines – where patients live in a state that is different than where the physician has his medical license
• Whether and under what conditions an MD must physically examine the patient in person before using telemedicine. This requirement is referred to as a “good faith exam.”

Who can provide the good faith exam?

When a good faith exam is required, a nurse practitioner, under the supervision of a physician, can perform the exam – under certain conditions which vary from state to state.

In California, the doctor must be immediately available to supervise the exam, if necessary. Under the California Business & Professions Code, Section 4067:

(a) ”No person or entity shall dispense or furnish, or cause to be dispensed or furnished, dangerous drugs or dangerous devices, as defined in Section 4022, on the Internet for delivery to any person in this state without a prescription issued pursuant to a good faith prior examination of a human or animal for whom the prescription is meant if the person or entity either knew or reasonably should have known that the prescription was not issued pursuant to a good faith prior examination of a human or animal, or if the person or entity did not act in accordance with Section 1761 of Title 16 of the California Code of Regulations.

(f) For the purposes of this section, “good faith prior examination” includes the requirements for a physician and surgeon in Section 2242 and the requirements for a veterinarian in Section 2032.1 of Title 16 of the California Code of Regulations.

Section 2422 of the Professional Business Code provides (as the Code relates to nurse practitioners):

(b) ”No licensee shall be found to have committed unprofessional conduct within the meaning of this section if, at the time the drugs were prescribed, dispensed, or furnished, any of the following applies:

• (3) The licensee was a designated practitioner serving in the absence of the patient’s physician and surgeon or podiatrist, as the case may be, and was in possession of or had utilized the patient’s records and ordered the renewal of a medically indicated prescription for an amount not exceeding the original prescription in strength or amount or for more than one refill.
• (4) The licensee was acting in accordance with Section 120582 of the Health and Safety Code.”

“Supervision” of a nurse practitioner (NP) is regulated by the California Business Code and the Medical Board of California.

Telehealth waivers from the Centers for Medicare & Medicaid Services (CMS)

During the pandemic, CMS is encouraging physicians and medical practices to deliver services remotely. You can visit telehealth.hhs.gov for helpful information about telehealth for patients and health care providers. CMS measures make it easier for people on Medicare, Medicaid, or the Children’s Health Insurance Program (CHIP) to take advantage of telemedicine. CMS is permitting doctors, under certain conditions, to “conduct telehealth with patients located in their homes and outside of designated rural areas” including using telemedicine to:

• “Practice remote care, even across state lines, through telehealth
• Deliver care to both established and new patients through telehealth
• Bill for telehealth services (both video and audio-only) as if they were provided in person”

“CMS significantly expanded the list of covered telehealth services that can be provided in Medicare through telehealth to include:

• Emergency department visits
• Initial nursing facility and discharge visits
• Home visits
• Therapy services”

The CMS waivers address the following areas:

• Practicing across state lines. CMS “announced a waiver allowing health care providers to furnish telehealth and other services using communications technology wherever the patient is located, including at home, even across state lines.” However, doctors who practice across state lines must be aware of the telemedicine laws that apply for their state and whether there are any interstate agreements governing telemedicine.
• Relationship between patient and provider. During the COVID-19 public health emergency, health care providers may see both new and established patients for telehealth and other visits furnished using communications technology.
• Types of telehealth services covered. CMS expanded the types of services that patients can receive through telehealth during the pandemic.
• Types of eligible providers. Generally, any provider who is eligible to bill Medicare for their professional services is eligible to bill for telehealth during this period.
• Supervision of health care providers. A key change in the CMS telehealth rules governing telehealth that helps address the concern for a good faith exam is that “Health care providers may supervise services through audio and video communication, instead of only in-person.”

What are interstate compacts?

Interstate compacts are agreements between multiple states which help medical practitioners practice in different states – such as permitting doctors the ability to practice using a single multistate license or making licensing in another state easier.

CMS generally approves of interstate license compacts for “Physician, Physical Therapy, Occupational Therapy, Speech Language Therapy, Nurse Practitioner, and Psychology”– which have their own interstate license compacts.

For example, the Nurse Licensure Compact (NLC) permits nurses to practice across multiple state lines under a single license. For a list of member states, see Nurse Licensure Compact (NLC).

State modifications of telehealth services during the COVID-19 pandemic

41 states are permitting waivers of telehealth regulations during the pandemic. The waivers differ in each state. The sources of the waivers include state executive orders, state medical board regulations, and other sources of authority. Some of the telemedicine waivers by state are:

• Arizona. The Arizona Medical Board (AMB) announced the following available temporary emergency licenses for Physicians (MDs) to practice in Arizona and the extension of the time frame for renewal of MD licenses during the COVID-19 State of Emergency:
  • Out of state MDs can apply for temporary licensure in Arizona by using the emergency temporary licensure application. Every MD temporary emergency license expires after 90 days or when there is a declaration that the State of Emergency has ended – whichever date is earlier.
  • [DOs]: The Revised Arizona Code provides that people can “apply for a temporary license with the Board to aid in the diagnosis and treatment of COVID-19 in Arizona.”
  • Gov. Ducey issued an Executive Order requiring health care insurance companies to expand telemedicine coverage for all services that would normally be covered for an in-person visit…The EO will stay in effect until there is a declaration that the public health emergency has ended. The EO:
    • “Includes all electronic means of delivering telehealth including telephone and video calls
    • Ensures that a patient’s home is considered an approved location to receive telemedicine services
    • And prohibits a regulatory board from requiring a medical professional who is authorized to write prescriptions to conduct an in-person examination of a patient prior to the issuance of a prescription. “
  • Duration. These Arizona provisions are effective until the COVID-19 public health emergency ends.
• California. The approved telehealth and related changes for California are:
  • Due to a California Executive Order – Personnel, including medical personnel from out-of-state who enter California to help prepare for, respond to, and mitigate the “effects of, and recovering from COVID-19 shall be permitted to provide services in the same manner as prescribed in Government Code section 179.5, with respect to licensing and certification.” The Director of the Emergency Medical Services Emergency Declaration Authority for medical personnel and the Director of the Office of Emergency Services for nonmedical personnel must grant permission. The permissions will be effective until the national health emergency ends.
  • Any medical facility, staffing agency, or telehealth agency that wishes to use “medical professionals with out-of-state certifications or licenses during the COVID-19 State of Emergency” are required to submit the following items/documentation to the EMS Authority before approval will be granted

• • 1. “A complete and signed ‘Request for Temporary Recognition of Out-Of-State Medical Personnel During a State of Emergency’ form.”
    2. The Request and supporting documents should be mailed to the EMS Authority.
    3. “The California EMS Authority shall review and make a written determination.”
    4. The approval shall last until the State of Emergency ends or until the “end date on the temporary recognition form, whichever comes first.”

• • Gov. Newsom signed Executive Order N-43-20 on April 4, 2020. This EO expands “protections to medical providers as they amplify the use of video chats and similar applications to provide routine and non-emergency medical appointments in an effort to minimize patient exposure to COVID-19.” The EO also “relaxes certain state privacy and security laws for medical providers, so they can provide telehealth services without the risk of being penalized.”
  • The EO suspends the health care providers’ requirements “to obtain verbal or written consent before the use of telehealth services and to document that consent, as well as any implementing regulations.”
  • Status. The ability of the EMS Authority to accept out-of-state personnel, including increasing access to telehealth and reimbursement will be effective as long as the emergency is active.
• Hawaii. The approved telehealth and related changes for Hawaii are:
  • Hawaii suspends “Section 453-1.3, HRS, practice of telehealth, to the extent necessary to allow individuals currently and actively licensed… to engage in telehealth without an in-person consultation or a prior existing physician-patient relationship; and to the extent necessary to enable out-of-state physicians, osteopathic physicians, and physician assistants with a current and active license, or those who were previously licensed… but who are no longer current and active, to engage in telehealth in Hawaii without a license, in person consultation, or prior existing physician-patient relationship, provided that they have never had their license revoked or suspended and are hired by a state or county agency or facility or by a hospital, including related clinics and rehabilitation hospitals, nursing home, hospice, pharmacy, or clinical laboratory.”
  • Status. The suspensions listed shall last until the COVID-19 emergency ends “which, according to the Governor’s 15th Supplementary Proclamation, is currently scheduled to expire December 31, 2020.”

Many states are relaxing the requirements to practice telemedicine during the COVID-19 pandemic. These suspensions are designed to help more qualified medical personnel, including out-of-state medical personnel, treat the people in the state for COVID-19. Some states are also easing the requirements for in-person visits before using telehealth services.

Medical practitioners, medical facilities, and telehealth agencies should contact Cohen Healthcare Law Group, PC for legal advice on compliance issues during the COVID-19 pandemic. Our experienced healthcare attorneys explain which telehealth requirements have been halted, which telehealth requirements haven’t been halted, and when the requirements will become active again.