Resources

Client Alerts, News Articles, Blog Posts, & Multimedia

Everything you need to know about BMD and the industry.

Advanced Practice Providers and Telemedicine Start-Up Surge

Overview:

Throughout the COVID-19 pandemic, we heard a lot about “surges” that happened all over the country regarding the virus.  One of the other interesting “surges” we have followed is the “surge” in new healthcare business start-ups, particularly businesses owned by advanced practice providers, such as nurse practitioners, physician assistants, certified nurse midwives, clinical nurse specialists, and certified registered nurse anesthetists (“Advanced Practice Providers” or “APPs”).  One of the hottest areas in the healthcare start-up surge has been the creation of practices that are telemedicine focused.  

While telemedicine is not a new concept, the number of practices and providers actually utilizing telemedicine has increased dramatically since the start of the pandemic. With this soar, providers, particularly APPs, have increasingly asked for assistance with appropriately structuring these new businesses and tackling questions regarding their telemedicine scope of practice and their ability to prescribe medications to patients who have not received an in-person examination. This article will address common questions that we have been asked by APPs trying to implement telemedicine in their own practices.

Scope of Practice:

The first things to remember with regard to telemedicine is that a provider must generally follow the laws and regulations of the state where the patient is located at the time of the visit.  With regards to scope of practice for APPs using telemedicine, it is important to note that this is rapidly changing, particularly because the drive for APP autonomy and full practice authority is in full force across the country, and each state’s scope of practice rules and regulations are different. 

Additionally, each state has wide variation in their telemedicine laws governing scope of practice while utilizing telemedicine, and those parameters have been changing quickly.  For example, in Pennsylvania, there were no telemedicine statutes in place prior to the pandemic, which meant rules neither prohibited nor authorized the use of telemedicine. However, Senate Bill 705 was introduced in 2021, which addressed the regulation of telemedicine by professional licensing boards and insurance coverage for services provided via telemedicine. 

Similarly, in Ohio, as a result of the pandemic, House Bill 122 was passed and will take effect March 23, 2022. As a result, Ohio Revised Code § 4743.09 lists advanced practice registered nurses and physician assistants among those health care professionals permitted to provide services via telemedicine, using either synchronous or asynchronous technology. Essentially, through this rule, the Ohio Board of Nursing (for APRNs) and Board of Medicine (for PAs) are granted permission to implement telemedicine rules in order to carry out the Bill. 

Prescribing to patients who an APP has not seen in person is another issue that has presented itself during the pandemic, with many states’ scope of practice laws not addressing the issue. However, states such as Virginia, for example, have implemented remote prescribing rules, focusing primarily on limitations associated with prescribing controlled substances.[1] With telemedicine being widely used since the start of the pandemic, it is likely that states and licensing boards will begin implementing more concrete rules related to remote prescribing, if they have not done so already.

Billing:

Another common category of telemedicine questions relates to what services providers can provide to patients utilizing telemedicine, and how these services are to be billed. For Medicare patients, the Centers for Medicare and Medicaid Services (“CMS”) has provided a list of services that may be reimbursed if provided via telemedicine in their “List of Telehealth Services for Calendar Year 2022.” 

While state Medicaid programs usually try to mirror Medicare, not all requirements will be the same. As such, it is important for nurse practitioners to look at their state’s Medicaid laws addressing telehealth in order to determine what services are covered and review any additional requirements there may be.     

Commercial insurers are also likely to list the telemedicine services they cover for reimbursement. Additionally, many states have implemented rules protecting coverage of telemedicine services. For example, in Missouri, health carriers and health benefit plans cannot deny coverage for a service solely because it was rendered via telemedicine if the service would have been reimbursed if the patient was seen in person.[2] Ohio’s H.B. 122 includes similar protections that require insurers to reimburse for telemedicine services. 

If you have any questions about healthcare business start-ups, telemedicine scope of practice, prescribing guidelines, reimbursement rules, or any other healthcare legal issues that arise, please contact Jeana Singleton by email at: jmsingleton@bmdllc.com, or by phone at: (330) 253-2001.

[1] Virginia Code § 38.2-3418.16.

[2] Missouri Statute § 376.1900.

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.

Property Owner Protection from Tax Valuation Challenges

New legislation provides significant new protections for commercial property owners against challenges to valuation primarily by local school boards and prohibiting side agreements to avoid tax valuation changes. The Ohio Legislature has approved House Bill 126 which will go into effect July 2022 but will effectively apply to the 2023 tax valuation year.