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What Telemedical Barriers Practices Face and How They Can Manage Them

This article quoting BMD Healthcare and Hospital Law Member Amanda Waesch was originally published in the National Society of Certified Healthcare Business Consultants June Newsletter.

The onset of the COVID-19 pandemic has led to many businesses and industries having to rapidly adapt new practices in order to stay profitable, and the healthcare industry is no exception. Although telehealth tools and practices have existed and been used since the Vietnam War, the pandemic has caused many individual healthcare practices to heavily rely on telehealth as a large portion of their service mix in order to continue to provide care for patients.

Because of this rapid adoption of telehealth practices in order to combat the restrictions of COVID-19, the telemedicine industry’s revenue has exploded in the last year. Experts predict that telehealth will continue to grow in use beyond the current pandemic, estimating the industry’s worth to be $25 billion by 2025.

However, this rapid adoption of telehealth was prompted out of need and has not been without its own barriers that practices now face.

Technology Barriers and Digital Tools

A large part of why many healthcare professionals hesitate to add telehealth within their own practices is due to the many unknowns. Maxine Lewis, a coding consultant for Medical Coding & Reimbursement Management, has seen first-hand what healthcare professionals are considering when looking toward the future:

“That’s the biggest question doctors are asking. What happens after the pandemic is over? Will we still be able to reach our patients in their home, or in the nursing facility, or do those have to become “real” visits rather than telehealth visits?”

There are so many unknowns that healthcare practitioners have to face, raising barriers that block them from diving head-first into full integration. Many are unsure of how they will be able to reach their patients if they make the switch because for some patients, the transition to digital health can be difficult.

“One of the other big issues is really the social determinants of health that surround those patients that may not have access to telehealth platforms,” said Adam Middleton, president of Healthcare Advisory Network, LLC. “They might be able to do a telephone visit, but there’s a difference between a telephone visit and a telehealth visit.”

Telehealth relies on being able to access the internet and being able to afford the required bandwidth is not always an option for people. If you have a population that lacks the resources to perform a telehealth visit, they will be forced to have an in-person visit, which could still be difficult post-COVID if that person has difficulty moving, limited access to transportation, or is in a long-term care facility. Practitioners fear that if they integrate telehealth into their services after there is no immediate need for it, they will be leaving a large portion of their patients behind.

One idea to overcome this barrier in part is to ship equipment to the homes of patients so that they can monitor themselves and send the results to their healthcare practitioners. Amanda Waesch, Esq., Vice President of Brennan Manna Diamond, agrees that healthcare providers need to look at the possibilities of getting their patients to perform their own readings and tests with equipment in their own homes.

“We will start to see social disparities in the telehealth world,” said Waesch. “Some might not be able to afford a blood pressure or scale, or know where they can get one, or how to even get the readings. We need to get ahead of this like with any new program.”

Most medical machines automatically record the data that their doctors need, but not every patient may be able to afford the tools and equipment they need on their own, and healthcare providers will have to create systems to provide the tools their patients need in order to make telehealth sustainable for all.

Doctors also need to consider the possible ramifications of relying on telehealth to check in with a patient as they will have to rely solely on what they are able to see and what their patients tell them. “With traditional telehealth there is limited ability to visualize the patient. A provider has difficulty to either look at a lesion, or check the throat, or check the eyes,” said Middleton. “But so much of what a provider diagnosis is through body language.” If a doctor incorrectly diagnoses a patient because they were not able to see their symptoms or thoroughly examine them, that doctor is still liable.

COVID-19 also forced many healthcare practitioners to make the switch to telehealth faster than they normally would have. Waivers were created to make the transition move more quickly during the PHE, but this relaxing of the rules has made many doctors weary about using telehealth.

“Healthcare is the second most heavily regulated industry next to nuclear. We had relaxation of the rules and that’s outside of the comfort zone in healthcare.” According to Waesch, when the public health emergency is over, these waivers to the rules end, and healthcare practitioners need to make sure they still have malpractice coverage in the states where they will be conducting the visits.

Lewis also agrees that making sure your coverage continues in all the states you will be conducting visits in is paramount when using telehealth after the public health emergency has ended.

“Malpractice is a big problem with digital telehealth because if they’re looking at a patient over... I’m in Ohio, and if they’re looking at somebody in Kentucky, does my malpractice cover me for treating a patient in Kentucky?” questioned Lewis. If a patient is across state lines, that doctor may not actually have any malpractice coverage.

Billing and Government Compliance

Changing HIPAA laws in particular have also been an issue for many healthcare businesses. Practitioners who have relied on communication platforms such as FaceTime and Skype need to prepare for service post-COVID when the HIPAA protections extended to these platforms end.

“So of course, now we have to get into ‘How do we create secure platforms?’” stated Kathy Moghadas, Principle for Associated Healthcare Advisors, Inc. The public health emergency runs through April 22, 2021, after which all of the practices who did not adopt telehealth technologies with previous HIPAA protections will not be able to use the platforms they used while protected. If they want to keep using telehealth in their service mix, they will either have to buy other HIPAA protected communications platforms or update the platforms they are currently using to comply with government regulations on healthcare privacy.

Attempting to remain compliant with changing government policies has also led to a number of issues that doctors have had to adjust to regarding billing and reimbursement. In a recent article written by Maxine Lewis titled “Telehealth, now and after PHE”, she states that “Many pro-Telehealth entities and providers are advocating to continue with the current, PHE rules of Telemedicine delivery once the PHE end, but as the OIG stated in their 2021 Work Plan, assess the overall effectiveness of Telehealth and to ensure it is not just a convenience over a medically necessary delivery of medicine.” It is also worth noting that the flexibilities which have been allowed under the public health emergency have been extended to July of 2021, but after that month, coverage will change again.

“The big issue came in 2020 when the CMS said ‘We will pay $23, $33, $43 (whatever they’re going to pay), for your telehealth visits’. And that’s when everybody said ‘okay game changer,” said Moghadas. “We can now service these patients and get paid for it’. So the doctor does not have to sit there and run reams and reams and reams of paper and documentation to be able to do what he needs to do which is to take care of the patient.”

Another complication with billing services and hours is that, in the future, it may just not be worthwhile for providers.

“Probably the two biggest challenges I see; one it’s going to be the economics behind it,” said Middleton. “So will the government and private payers continue to pay for telehealth as if it is a traditional visit.” As a public health emergency, physicians and providers are getting paid for telehealth visits like they are in-person visits, provided that everything is coded correctly. But if the government and private payers pull back after COVID-19 is no longer an immediate emergency, these physicians may not receive the necessary payment to continue to provide telehealth services in place of in-person visits.

Knocking Down Barriers, Modernization, and Solutions for the Future

COVID-19 has entirely reshaped the healthcare landscape as we know it. Because medical practices were forced to adopt telehealth during lockdowns, money was funneled into these programs and tools the by US government to make the transition easier.

“When you look at the massive amounts of money that private equity companies like Teladoc, MD Live, and others are putting into telehealth technologies and what they’re doing to broaden that environment of care, this is not going away any time soon,” says Middleton.

“The standard of care needs to start evolving. Once a program has expanded and coverage extended, the government is unlikely to take it away,” said Waesch. Now that telehealth is here, doctors will have to determine if a patient can have the same level of care over telehealth as in-person, but new services to help with that decision are quickly being developed.

Healthcare practitioners have been working with community programs to help teach patients about telehealth technologies as well as offering them assistance.

“...we’re seeing insurance companies offering little e-learners on how to access telehealth services,” said Moghadas. “The doctor’s office sets up an appointment, they have contracted with a third party… that can send the information to the patient five minutes, 10 minutes before the scheduled appointment. A message is sent to the person that says ‘Your 3:45 doctor’s appointment is getting ready, come five minutes beforehand and press this link’”.

Eliminating confusion over billing means an emphasis on documentation. “Document all services with the patient in the record. This must be treated as if the patient was being seen in person,” said Healthcare Coding and Reimbursement Consultant Terry Fletcher, founder of Terry Fletcher Consulting, Inc. “Providers should maintain either electronic or handwritten notes on each session or encounter with the client. These notes should be incorporated into the client record at a later date once the provider has access.” In order to receive payment for the services provided, proper documentation should be followed to the letter.

Healthcare practices may also not be alone in their efforts to adopt telehealth into their service mix. Moghadas says, “Most of them [practices] have electronic systems, most of the hospitals are supporting and giving help to them and resources to them in their practice management divisions by helping these practices that are affiliated with these hospitals… they could be up and running in two days if they just listen to the people that are there to advise them.”

“We have maybe 10 to 12, 15 percent of the population of medical personnel that use experts,” Moghadas concurs. “The fastest way they can get on board is of course to use an expert to help them get into it.” Healthcare consultants can streamline the process of telehealth adoption as many of them have faced the very issues that practices are seeing now and have tried and true methods of overcoming these barriers.

“It’s an incredible return on investment to be able to use consultants who have either seen this, experienced it, and helped other practices set this up,” said Middleton. Consultants have already gone through these problems and can create individualized solutions. Middleton also stated that practices should keep in mind that a good consultant will sit down with them to determine the goals of your practice, then generate a strategy that helps fulfill those goals. “They should sit down with those providers and the owners and really make sure they understand what their goals are as an employer, as a provider, as a business owner.”

The other thing to remember is that healthcare will never be 100 percent online. It’s an adoption, not a hostile takeover. Practices can create hybrid methods in which new patients can first be seen and diagnosed in-person, with follow-up visits being via telehealth.

“Always remember - The decision of whether or not to engage in Telehealth rests with the patient,” said Fletcher. “There may be times when a face-to-face encounter is necessary. If that is the case, schedule an in-person visit with the CDC safety protocols.”

Moving forward, patients may want to have more telehealth options available to them, but what is most important is that doctors continue to serve their patients to the best of their ability. In this new digital age, telehealth may be the best way to do that.

The purpose of this article is to convey general information only and not to provide legal or tax advice or opinions. The information in this article should not be construed as, and should not be relied upon for, legal or tax advice in any particular circumstance or fact situation. No action should be taken in reliance on the information contained in this article. The NSCHBC, on behalf of the organization and its Members, disclaim all liability in respect to actions taken or not taken based on any or all of the information set forth in this article to the fullest extent permitted by law. An attorney, accountant, or other licensed/certified professional should be contacted for advice on specific issues, as appropriate.

The Masks Are Back: New OSHA Regulations for Healthcare Employers

Employment Law After Hours is back with a News Break Episode. Yesterday, OSHA published new rules for healthcare facilities, including hospitals, home health employers, nursing homes, ambulance companies, and assisted living facilities. These new rules are very cumbersome, requiring mask wearing for all employees, even those that are vaccinated. The only exception is for fully vaccinated employees (2 weeks post final dose) who are in a "well-defined" area where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.

New OSHA Guidance for Workplaces Not Covered by the Healthcare Emergency Temporary Standard

On June 10, 2021, OSHA issued an Emergency Temporary Standard (ETS) for occupational exposure to COVID-19, but it applies only to healthcare and healthcare support service workers. For a detailed summary of the ETS applicable to the healthcare industry, please visit https://youtu.be/vPyXmKwOzsk. All employers not subject to the ETS should review OSHA’s contemporaneously released, updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. The new Guidance essentially leaves intact OSHA’s earlier guidance, but only for unvaccinated and otherwise at-risk workers (“at-risk” meaning vaccinated or unvaccinated workers with immunocompromising conditions). For fully vaccinated workers, OSHA defers to CDC Guidance for Fully Vaccinated People, which advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, or local laws or individual business policies.

Employer Liability for COVID-19 Vaccine Side Effects

As employers encourage or require employees to obtain a COVID-19 vaccine, they should be aware of OSHA recording obligations and potential workers’ compensation liability. Though OSHA has yet to revise its COVID-19 guidance in response to the latest CDC recommendations, OSHA has revised its position regarding the recording of injury or illness resulting from the vaccine. Until now, OSHA required an employer to record an adverse reaction when the vaccine was required for employees and the injury or illness otherwise met the recording criteria (work-related, a new case, and meets one or more of the general recording criteria). OSHA has reversed course and announced that it will not require recording adverse reactions until at least May 2022, irrespective of whether the employer requires the vaccine as a condition of employment. In its revised COVID-19 FAQs, OSHA states:

The New Rule 1.510 - Radical Change for Summary Judgement Procedure in Florida

In civil litigation, where both sides participate actively, trial is usually required at the end of a long, expensive case to determine a winner and a loser. In federal and most state courts, however, there are a few procedural shortcuts by which parties can seek to prevail in advance of trial, saving time, money and annoyance. The most common of these is the “motion for summary judgment”: a request to the court by one side for judgment before trial, generally on the basis that the evidence available reflects that a win for that party is legally inevitable and thus required. Effective May 1, 2021, summary judgment procedure in Florida has radically changed.

Vacating, Modifying or Correcting an Arbitration Award Under R.C. 2711.13: Three-Month Limitation Maximum; Not Guaranteed Amount of Time

In a recent decision, the Supreme Court of Ohio held that neither R.C. 2711.09 nor R.C. 2711.13 requires a court to wait three months after an arbitration award is issued before confirming the award. R.C. 2711.13 provides that “after an award in an arbitration proceeding is made, any party to the arbitration may file a motion in the court of common pleas for an order vacating, modifying, or correcting the award.” Any such motion to vacate, modify, or correct an award “must be served upon the adverse party or his attorney within three months after the award is delivered to the parties in interest.” In BST Ohio Corporation et al. v. Wolgang, the Court held the three-month period set forth in R.C. 2711.13 is not a guaranteed time period in which to file a motion to vacate, modify, or correct an arbitration award. 2021-Ohio-1785.