Everything You Need to Know About Legally Providing Telehealth


This weblog is for academic functions solely and doesn’t represent authorized recommendation. Contact healthcare authorized counsel to acquire authorized recommendation, or attain out to your state board for extra detailed info.

Prior to the pandemic, telehealth was slowly gaining traction as a viable mode of service supply for OTs, PTs, and SLPs. Suppliers and sufferers had been starting to admire its advantages (particularly for sufferers in rural areas and pediatric sufferers dwelling on federal land) however adoption was scattered. Some states, reminiscent of Georgia, explicitly licensed telehealth of their rehab remedy state follow acts, whereas others licensed rehab remedy telehealth through a separate, associated statute. Nonetheless, rehab remedy practitioners in lots of states weren’t in a position to present telehealth in any respect, and plenty of state skilled associations (reminiscent of these in Arizona) had been advocating for legislative modifications that might permit higher telehealth inclusion for rehabilitation suppliers.

Then, the pandemic modified the telehealth panorama virtually in a single day, forcing speedy adoption throughout the nation as states sought methods to keep healthcare entry whereas lowering the chance of an infection. Consequently, it’s extra necessary than ever to perceive the loopy patchwork of state statutes, government orders, and federal necessities as you develop your follow’s telehealth program.

Am I allowed to present telehealth companies?

First, you could decide whether or not you’re allowed to present telehealth companies by reviewing your state follow act and relevant state telehealth legal guidelines. Some states, reminiscent of Kentucky (see KY Rev. Stat. Ann 26:37.200), deal with telehealth authority proper within the PT follow act. Different states, reminiscent of Rhode Island, authorize rehabilitation suppliers to use telehealth companies beneath one other statute. The truth is, Rhode Island’s Telemedicine Coverage Act doesn’t particularly establish PTs, OTs, or SLPs, however broadly consists of all healthcare professionals. Then, there are the states that haven’t spoken to whether or not rehabilitation suppliers can follow telehealth (reminiscent of Wyoming and Alabama). Whereas it may be a protracted, complicated analysis mission, confirming that you’re allowed to follow telehealth in your state is crucial.

In case your state’s follow act doesn’t reference telehealth, assessment the Middle for Related Well being Coverage’s guide on state telehealth laws or this rehab-specific 50-state survey. There could also be a statute that authorizes you to present telehealth companies, and these sources will level you in the best path. When you nonetheless can’t discover an relevant statute—or in the event you assume the legislation in your state could also be silent in your skill to ship telehealth companies—contact your state board and ask for a authorized telehealth reference. If the legislation remains to be silent about your occupation’s skill to follow telehealth, proceed with excessive warning and at your personal threat. It’s higher to present companies licensed by legislation than to follow in a grey space that might jeopardize your license.

Which legislation ought to I observe—my governor’s COVID-19 government order or my state follow act?

When states formally declare a state of emergency, governors achieve the authority to rapidly enact legal guidelines so as to defend the general public. When COVID-19 started sweeping by way of the nation, many governors enacted government orders that broadly licensed all healthcare professionals to present telehealth companies. Even higher, a lot of these government orders additionally mandated insurance coverage protection of telehealth. It was like getting the whole lot in your want listing after which some, as most pre-pandemic telehealth legal guidelines didn’t account for payer reimbursement. And a few government orders went even additional, recognizing out-of state licenses and suspending necessities round affected person co-pays and affected person standing. (Beforehand, for instance, sufferers usually had to be “established” so as to obtain telehealth remedy. Many government orders eliminated this requirement, thus permitting suppliers to see new sufferers through telehealth.)

So, through the pandemic, refer to the relevant government order in your state for steerage on whether or not you may present telehealth. If there’s a hole within the government order (e.g., it doesn’t deal with knowledgeable consent necessities), reference your state legislation. If there’s a battle between your state legislation and the chief order, observe the chief order, as it’s the governing legislation through the emergency.

When will the chief order authorizing my occupation to present telehealth expire?

Keep in mind that emergency government orders are solely short-term. If you’re offering telehealth companies beneath the chief order, you’ll have to revert again to your previous state legal guidelines after the cessation of the general public well being emergency—and in case your state legislation doesn’t authorize telehealth companies, you can’t proceed to present them.

Evaluate the chief order to see if there’s an expiration date. Most would not have expiration dates, as an alternative linking the order’s expiration to the expiration of the general public well being emergency. If that’s the case, then you could monitor the information, the governor’s web site, and your state’s well being companies division for updates.

Can I take advantage of the phone to present telehealth companies, or do I’ve to use reside video and audio expertise?

Many state follow acts and telehealth statutes embrace particular definitions of what constitutes sanctioned telehealth service supply—together with expertise necessities. Be sure you perceive that definition—and that you simply solely present companies in accordance with it. Telehealth definitions will be:

  • Broad, overlaying every type and variations of distant affected person companies (e.g., “use of data and communication applied sciences consisting of telephones, distant affected person monitoring units, and different digital means” as set forth within the Delaware Occupational Therapy Practice Act); or
  • Restrictive, overlaying solely sure sorts of expertise (e.g., “audio-visual communication, not together with commonplace phone, facsimile, or piece of email” as outlined by Louisiana’s telehealth statute N.R.S. 629.515(b)).

Throughout the pandemic, many government orders have expanded the definition of telehealth companies, which is why you could assessment your state’s relevant government order. Don’t be shocked if it permits telehealth service supply through any sort of digital communication! Providing healthcare companies whereas concurrently stopping the unfold of COVID-19 requires drastic measures—so it’s possible you’ll be licensed to use cellphone, textual content, electronic mail, or reside video for telehealth through the pandemic.

Do I’ve to be licensed within the state the place my affected person is situated?

So as to present telehealth companies, you usually should be licensed within the state the place your affected person is bodily situated. Throughout the pandemic, some states are quickly expediting the licensing course of or accepting out-of-state licenses. Make certain to fastidiously assessment the chief order of the state that the affected person is in earlier than offering any companies to her or him. Some states, reminiscent of New York, solely waived state licensure necessities for choose suppliers (together with bodily therapists) and nonetheless require state licenses for all different professionals. However, even the suppliers who had been marked exempt from the usual New York state licensure requirement had to bounce by way of yet another hoop: that they had to be licensed in good standing in one other state.

Acquiring and sustaining a number of licenses will be cumbersome and costly. The PT Compact creates license portability by granting reciprocal license recognition for all states which have signed the compact settlement. This map identifies the states which have joined the Compact.

In case your affected person is in a state that has signed the license compact settlement—and you’re in one other state that has additionally signed the settlement—then your license is moveable, and you may present companies throughout state traces. That stated, it’s at all times a good suggestion to assessment your state follow act and/or name your licensing board to affirm the portability of your license.

The AOTA can also be engaged on creating an interstate skilled licensing compact for occupational therapist license portability.

Lastly, in case you are offering telehealth companies to sufferers on federal land, you solely want to be licensed in good standing in your state. However once more, examine along with your state board to affirm your license necessities.

Do I’ve to acquire knowledgeable consent earlier than delivering telehealth companies—and what’s the scope of knowledgeable consent?

Acquiring informed consent out of your sufferers earlier than you present telehealth just isn’t solely greatest follow, but additionally could also be required by state legislation. Accumulating a affected person’s knowledgeable consent helps you deal with potential privateness and safety points in addition to account for different distinctive telehealth issues. Please notice that knowledgeable consent just isn’t vital for in-person visits, neither is it required by Medicare.

Earlier than offering telehealth, assessment your state legislation to decide:

  • whether or not or not knowledgeable consent is required;
  • how usually you could gather knowledgeable consent (e.g., solely upon analysis versus prior to every remedy session);
  • which kind of knowledgeable consent—written or verbal—is required (see the Connecticut Telehealth Services Statute for an instance); and
  • the scope of knowledgeable consent, which can deal with:
    • acceptable remedy strategies and limitations,
    • the affected person’s proper to revoke consent to telehealth companies, and
    • the professionals and cons of offering telehealth companies, together with the privateness and safety dangers.

Try the pattern template we created here—or contact your state’s telehealth resource center. Customise your template to account for all the necessities put forth by your state follow act, as relevant.

Can remedy assistants or college students present telehealth remedy—and might I take advantage of telehealth to supervise them?

Many states which have licensed PTs, OTs, and SLPs to ship telehealth companies have additionally prolonged this authorization to remedy assistants. Nonetheless, the principles for service supply and supervision might not be clear (particularly in the event that they’re outlined in pandemic government orders), so assessment your state legislation fastidiously and name your state board you probably have questions. State legal guidelines might have totally different supervision necessities based mostly on the remedy assistant’s competence and the follow space. For instance, Idaho permits occupational therapists to use telehealth to supervise on the common or routine supervision stage—however not on the direct-line-of sight stage.

As a common rule, you shouldn’t permit college students to ship remedy companies, as a result of it’s not secure, and payers don’t reimburse for unlicensed pupil companies. So, deal with it like an in-person go to: ship the companies your self, and supply medical instruction to the coed as you accomplish that. If the college permits college students to full medical training necessities through telehealth, they will in all probability sit in on a session—they usually might find a way to attempt some telehealth methods. Nonetheless, you could at all times be current through the video name or phone communication, and it’s best to examine along with your state licensing board to affirm that that is applicable.

What else do I want to find out about utilizing telehealth in my rehab remedy clinic?

Evaluate your state follow act and any relevant telehealth statutes fastidiously and sometimes. Each state has totally different necessities, and it’s best to know what’s required earlier than you begin training telehealth. For instance:

  • Do you could have to present the affected person along with your license quantity and speak to info (as required by Connecticut)?
  • Because the evaluating occupational therapist, are you accountable for figuring out when in-person visits are applicable (as required by Delaware)?
  • Are you required to register with the Telehealth Enterprise Registry (as required by Alaska)?
  • Are you required to use safe and HIPAA-compliant expertise (as required by Iowa)? (Be aware: On this case, failure to adjust to this requirement can lead to federal penalties as well as to state sanctions or license suspension.)
  • Do you could have to doc within the medical file that the companies had been offered utilizing telehealth (as required by Washington state)?

Telehealth visits aren’t the identical as in-person visits, which is why it’s essential that you simply examine off each single state-issued requirement.

If there are each federal and state telehealth legal guidelines that apply to me, which one ought to I observe?

Federal healthcare applications embrace Medicare, Tricare, and the Veterans Affairs (VA) administration. Usually, federal legal guidelines trump state legal guidelines, so if the federal and state legal guidelines that apply to you battle, observe the federal legislation necessities. However—and this is a vital however—if the state legislation is extra restrictive, then it’s best to observe the state requirement. This implies you might have to observe two totally different legal guidelines and two totally different units of necessities on the identical time. Evaluate every legislation fastidiously, and name your state board you probably have any questions.

Like state governors, the Facilities for Medicare and Medicaid Providers (CMS) has emergency authority throughout a public well being emergency. That is known as 1135 waiver authority. When the President declared a public well being emergency, CMS enacted its 1135 waiver authority to permit Medicare to reimburse PTs, OTs, and SLPs for distant companies and telehealth companies. (See part FF of this document.) On the time of this text’s publication, licensed rehab remedy suppliers can deliver telehealth and remote services beneath Medicare Half B within the personal follow outpatient setting, expert nursing services, and outpatient hospital settings.

As with state government orders, the 1135 waivers will expire when the emergency is over—and rehabilitation therapists will now not have authorization to present telehealth companies to Medicare sufferers. It’s essential that you simply regularly monitor information and updates from the APTA, ASHA, and AOTA web sites to be certain that you discontinue telehealth companies when the waivers expire (except further measures are taken to lengthen your telehealth privileges past the general public well being emergency).

As complicated and sophisticated as this all appears, it sadly solely will get worse when you think about different payers. This loopy patchwork of state legal guidelines, orders, and federal legal guidelines doesn’t at all times match up with industrial payer insurance policies. So, even in the event you’re allowed to present telehealth companies, you’re not assured to obtain cost for these companies. That’s why you could individually assessment your payer insurance policies to decide their stance on—and necessities for—telehealth reimbursement.

I consider that OTs, PTs, and SLPs have what it takes to efficiently navigate by way of the labyrinth of telehealth laws—and I additionally consider that over time, as we familiarize ourselves with these laws, it’ll turn into simpler and simpler to comply. Till then, WebPT is right here to assist.

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