Avoiding HIPAA Violations During COVID-19

telehealth laws after covid-19

telehealth laws after covid-19By: Steven Boyne

The COVID-19 virus has and will probably continue to change the way healthcare providers and business associates interact and help their patients. As many providers are aware, a HIPAA violation is a serious issue, and can cost a healthcare entity large amounts of time and money to respond to any regulatory investigation. Recognizing that the COVID-19 pandemic has strained every corner of the economy and is THE MOST IMPORTANT issue for almost every industry, the federal government has rolled back some HIPAA protections. It is unclear how long these rollbacks will last, and it is possible that some of them may be permanent, but for now healthcare providers and their business associates can take some comfort that they can focus on delivering care and not dealing with overly burdensome regulations and investigations. The major changes include:

  • Telehealth. Changes include allowing physicians and other healthcare providers to offer telehealth services across State lines, so State licensing issues should not be a concern. Additionally, Providers are essentially free to choose almost any app to interact with their patients, even if it does not fully comply with the HIPAA rules. The HHS allows the provider to use their business judgment, but of course, such communications should NOT be public facing – which means DO NOT allow the public to watch or participate in the visit!
  • Disclosures of Protected Health Information (PHI). A good faith disclosure of such information will not be prosecuted. Examples include allowing a provider or business associate to share PHI for such purposes as controlling the spread of COVID-19, providing COVID-19 care, and even notifying the media, even if the patient has not, or will not grant his or her permission.
  • Business Associate Agreement (BAA). As most healthcare providers know, a BAA agreement between a provider and an entity that may have access to PHI is required by law. During the COVID-19 pandemic, the lack of a BAA is not an automatic violation.

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Breaking News – State Surgeon General Issues Order 20-007 May 9th

State Surgeon General Issues

florida breaking healthcare news on controlled substancesBy: Susan St. John

In my last post, I promised to keep you updated as to any new orders from the State Surgeon General that would further extend a practitioner’s ability to prescribe refills of non-malignant pain controlled substances using telehealth communications, or a qualified physician’s ability to recertify an existing qualified patient’s use of medical marijuana. The Surgeon General has extended the ability to continue assisting patients with these specific needs (as well as other needs) until May 31, 2020, through the issuance of Emergency Order 20-007 on May 9, 2020.

Keep in mind, that to prescribe a refill of a controlled substance for chronic non-malignant pain, the practitioner must be an MD, DO, APRN, or PA licensed in Florida and designated as a controlled substance prescribing practitioner. Further, to prescribe such controlled substances using telehealth communications during this public health emergency, the patient must be an existing patient of the prescribing practitioner.Continue reading

Maximizing COVID-19 Government Support Dollars

COVID-19 Government Support Dollars

By: Steven Boyne

COVID-19 has devastated the US economy, including many parts of our Healthcare sector. The Federal Government, along with most States, have begun to respond with various financial incentives, ranging from straight out grants to loans, and everything in between. The following is an overview of some of the assistance that is currently available for the Healthcare community, along with some tips that may assist your company in applying, and what you need to do if you are lucky enough to receive some money:

The CARES Act

  • Paycheck Protection Program (the “PPP”). Essentially a grant from the Federal Government for payroll, employee benefits, rent/mortgage, utilities for 8 weeks. This program is available for all small businesses, and is managed through banks and private financial institutions.

TIPS:

  • Apply with multiple financial institutions, and whoever comes through first take the loan/grant;
  • If you receive the money keep excellent records;
  • You can only use the money for W-2 employees, not 1099 contractors;
  • There are strict rules with respect to the number of employees, and their maximum salary. The NUMBER of employees before and after the loan is critical, not the actual employee, so if you laid off someone, you don’t have to hire back that particular person, you can use the money for a new employee who fills the same position; and
  • If you don’t use all the money for payroll etc, don’t worry, you can either pay it back in a lump sum, or pay it back over time at 1% interest.

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Access to Care via Telehealth Increases Again in Second Round of Changes Due to COVID-19

Telehealth & Teledentistry Advisement

By: Susan St. John

Access to telehealth for Medicare beneficiaries was further increased by the Trump Administration April 30, 2020. These new changes allows all health care professionals eligible to bill Medicare for services to provide services via telehealth communications and to bill the Medicare program for such services. Additionally, certain services may now be provided using audio technology only.

For a list of services eligible for reimbursement by the Medicare Program, including services requiring audio technology only, download here. There are approximately 180 different codes reimbursable by Medicare if provided via telehealth communications.

Stark Law waived to facilitate COVID related medical services

stark law waiver

stark law waiverBy: Jeff Cohen

The Secretary of Health and Human Services issued blanket waiver of the Stark Law on March 30th in order to facilitate COVID related medical services.  The waivers apply only to financial relationships and referrals related to COVID.  The circumstances and conditions under which the waivers apply are strictly and narrowly described.  Moreover, the waivers have no impact in the presence of fraud or abuse.  With respect to physicians wanting to provide designated health services (e.g. clinical lab services) related to COVID detection and treatment, for instance–

  1. the federal requirement that the DHS be provided in the same building as the physician office is waived; and
  2. the financial relationship limitations between the physician (or family member) and the DHS provider is waived.

The waiver also contains specific examples of waived interactions between providers and hospitals, including—Continue reading

Telehealth/Telemedicine extends until May 8, 2020 in Florida

Telehealth Telemedicine extension

Telehealth Telemedicine extensionBy: Susan St. John

Breaking News: The State Surgeon General issued Emergency Order 20-004 at approximately 6:01 p.m. on April 15, 2020. Emergency Order 20-004 extends all the provisions of Emergency Order 20-002 until May 8, 2020, unless further extended. Thus, certain practitioners licensed in other states may provide telehealth services to persons in Florida without having to register with the Department of Health. Also, Emergency Order 20-003, issued March 21, 2020, named additional clinical practitioners licensed in other states that may provide telehealth services to persons in Florida. The following professionals that hold an active, valid, and unencumbered license in another state, that are not under investigation or current discipline, and have not had their license revoked in any jurisdiction, may provide telehealth services in Florida:Continue reading

COVID-19 Temporary Waivers and New Rules Issued by CMS to Combat the Pandemic

covid-19 temporary waiver

covid-19 temporary waiverBy: Susan St. John

CMS has issued temporary waivers and new rules to help the American health care system address the increased need for health care services caused by COVID-19. Among the waivers, CMS is allowing hospitals to set up services in alternative sites to accommodate increased patient census. Hospitals may be allowed to use ASCs, inpatient rehab hospitals, hotels and dormitories for non-COVID-19 patients or patients not requiring critical inpatient services. Hospitals are also being encouraged to increase staffing, allowing hospitals to increase staff through hiring of local and non-local providers/practitioners as long as they are appropriately licensed in the same state as the hospital or another state. However, even though CMS has created flexibility for rendering services during this pandemic, use of alternative “hospital” sites and expansion of hiring staff must comport with a state’s emergency preparedness or pandemic response plan.Continue reading

CMS Rolls Out a General Provider Telehealth and Telemedicine Tool Kit

Information from CMS for medical providers on telehealth and telemedicine

Information from CMS for medical providers on telehealth and telemedicineBy: Susan St. John

CMS has rolled out a telehealth/telemedicine tool kit to assist medical professionals with health care delivery during the current COVID-19 public health emergency.

The toolkit contains information and links concerning:

 

  • 1135 Waivers – allows the Secretary of HHS to temporarily waive or modify certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements to ensure sufficient health care services and items are available to meet the needs of individuals enrolled in Social Security Act programs during the emergency and that providers who provide services in good faith can be reimbursed and exempted from sanctions (provided there is no determination of fraud and abuse). 1135 waiver or modifications include:
    • Conditions of participation and other certification requirements;
    • Program participation and similar requirements;
    • Preapproval requirements;
    • State licensing requirements where services are rendered as long as the provider has equivalent licensing in another State (for Medicare, Medicaid, CHIP reimbursement only; State licensing still controls whether a non-Federal provider may provide services in a state he/she is not licensed in);
    • EMTALA sanctions for redirection for medical screening, as long as redirection is not the result of discrimination on the basis of a patient’s source of payment or ability to pay;
    • Stark self-referral sanctions;
    • Adjustment (not waiver) to performance deadlines and timetables;
    • Limitations on payment to permit Medicare enrollees to use out of network providers in an emergency situation.

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Governor DeSantis’ order on COVID-19 and Non-essential Elective Medical Procedures

florida governor's orders for healthcare businesses during corona virus outbreak

florida governor's orders for healthcare businesses during corona virus outbreakBy: Jeff Cohen

Florida’s Governor passed an Executive Order Friday which essentially shuts down all elective medical treatment.  The Order (20-72) only allows “non-urgent or non-emergency procedure or surgery which, if delayed, does not place a patient’s immediate health, safety, or wellbeing at risk, or will, if delayed, not contribute to the worsening of a serious or life-threatening medical condition.”Continue reading