As we look toward the end of a tumultuous year, it is incumbent on all those who are involved in the fight against COVID-19 to consider what was learned, acknowledge where efforts went wrong, celebrate collective achievements, and transition the provision of medicine to comport with the ever-changing needs of patients. One of the more prominent successes has been the increasing utilization of telehealth services. Indeed, long-standing and antiquated regulations were suddenly lifted allowing millions of patient encounters to take place remotely. We now know that telemedicine remains an integral part of our response to the pandemic, serving to:

• Ensure patients remain safe at home

• Conserve precious PPE

• Provide a much-needed revenue stream to medical practices around the country

Telemedicine and the COVID-19 Vaccination

In early December 2020, the Centers for Medicare and Medicaid Services (“CMS”) released the annual Physician Fee Schedule final rule (“PFS”) making permanent several expansions to telehealth services covered by Medicare. Having added 144 types of telehealth services at the onset of the pandemic, the PFS permanently codified nine, including group psychotherapy and home visits. The PFS also provided for an additional 59 types of telehealth services – including emergency department visits, physical therapy, and neonatal care – to test their efficacy until the current health emergency expires. These changes allow physicians to provide needed care and expand their practices during a crisis that once made both of those aims seem impossible. Telehealth is not without risk, however, and physicians are encouraged to consider the following guidelines:

• Sign up for the Office of Inspector General and Office of Medicaid Inspector General email lists which provide those agencies’ alerts as to the latest telehealth trends, advisories, and related investigations

• Be aware of HMO and commercial payor rules related to appropriately billing for telehealth and related services

• Consult with health care attorneys, certified medical coders, and colleagues regarding best practices

• To the extent possible, maintain the same high standard of care for both telehealth and in-person patient encounters

• Maintain written policies and procedures in case of a technical failure during a telehealth encounter

Other relevant considerations are as follows:

• The technology available for utilization in telehealth services has been significantly expanded and includes commonly-used smartphone applications such as Facetime, Facebook Messenger, Google Hangouts, and Skype; it is essential that encryption be enabled when utilizing these applications

• Do not utilize “public-facing” applications such as TikTok, Twitch, or Instagram

• The HHS Office for Civil Rights (“OCR”) enforces patient privacy protections set forth in HIPAA/HITECH; the OCR has issued a Notification that it will not impose penalties for “good faith” violations of patient privacy in utilizing telehealth services during the pendency of the national emergency

• At the onset of the pandemic, federal and state authorities issued protections providing practitioners immunity from any malpractice liability in connection with the diagnosis and treatment of COVID-19; physicians must be aware that some states, including New York, are now taking measures to limit the scope of that immunity

• As always, documentation is the best defense; physicians are encouraged to document:

  • A patient’s consent to telehealth service

  • The type of service/application utilized

  • Duration of the patient encounter

  • What occurred during the service

On the Horizon for 2021

Another important recent development is that Pfizer and Moderna have obtained fast-track approval of their respective COVID-19 vaccines. Distribution and administration of the vaccines are already underway, and the plan is administration first to health care providers and nursing home residents, and then to the general public in order of priority and risk based on age, co-morbidity, and employment involving public-facing service.

An interesting issue that has yet to be substantially debated is whether government authorities or private employers can/will make taking the vaccine mandatory. The Courts are sure to be called upon to settle this debate as any such mandate (if allowable) would need to weigh the overall public good against citizens’ civil liberties. Mandatory vaccinations are certainly not without precedent. The states do, in fact, have the constitutional authority to compel vaccination. That authority stems from the 1905 Supreme Court case, Jacobson v. Massachusetts, in which a Massachusetts resident challenged that state’s mandatory smallpox vaccine at the risk of a five-dollar fine. Furthermore, there is a precedent allowing certain private employers to compel employees to be vaccinated as a condition of employment. These private employer mandates have largely been sector-dependent and focused on the health care industry. Given the current hyper-politicized climate, it seems unlikely that a federal or state mandate would ever come to fruition. However, health care practitioners should be prepared for the strong likelihood that they will be subject to some variation of a mandate by private employers and health systems.