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This blog is co-authored by Mantra Health, a telemental health and software platform company focused on serving the needs of higher education, and Epstein Becker Green, a national law firm with an expertise in the provision of health care services in higher education environments.
In early March 2020, the federal government officially declared the novel coronavirus (“COVID-19”) outbreak a national emergency (1), and the U.S. Department of Health and Human Services (“HHS”) declared the COVID-19 crisis a public health emergency under Section 319 of the Public Health Service Act. (2) These events resulted in a myriad of changes to federal laws related to telehealth, as well as many related changes at the state level. These changes have prompted an influx of questions from mental health care providers who are pivoting to telehealth as their sole modality for providing care. This is particularly true in the higher education setting where university and college students and staff have been evacuated to their homes or other safe environments and education continues on a remote access basis.
This blog series, published by Mantra Health and Epstein Becker Green, was initiated in response to questions from the field of higher education mental health providers who are incorporating telehealth into their settings while concurrently adjusting to support a remote campus. Mantra Health and Epstein Becker Green will be publishing a series of three posts that will cover a range of changes in federal and state laws related to the use of telehealth, including:
- Blog #1: Professional licensure, state-specific definitions of telehealth, and acceptable telehealth modalities and platforms
- Blog #2: Privacy and security regulations pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)
- Blog #3: Remote prescribing and managing high risk patients
Overview of Key Regulatory Changes
The Centers for Medicare & Medicaid Services (“CMS”) has made significant changes to its telehealth coverage and reimbursement rules in response to COVID-19, including but not limited to:
- Waiver of the requirement that providers have a valid license for the state in which they provide care (3); and
- Expansion of the list of acceptable platforms upon which telehealth services may be provided. (4)
However, the guidance that has come from CMS is only applicable to federal health care programs. Such guidance may not apply to a large segment of the higher education student population, given the relatively small numbers of students receiving coverage under a federal health care program. It nevertheless is important to understand the federal-level guidance to the extent it can provide a roadmap for similar changes that may be occurring not only at the state level but also by private insurers.
Of note, the relaxation of federal and state laws stems from the COVID-19 national public health emergency and, as specifically stated by many authorities, is temporary in its nature. We cannot predict when the national public health emergency period will end or the extent to which these emergency actions will change the prior regulatory and legal framework more permanently. However, in the absence of evidence to the contrary, higher education providers should anticipate that most, if not all, regulatory and legal changes will revert back to the status quo as it existed prior to the COVID-19 emergency.
FAQs from Higher Education Providers: Telemental Health Regulatory Considerations
How have professional licensure requirements changed? As a provider serving a higher education institution’s student community, and/or providing telemental health services to college and university students, does this mean I can practice across state lines?
With college and university campuses shut down and curriculum moved online, most higher education students have been forced to relocate elsewhere, often to a different state than where the college or university is physically located. Yet, the students are still considered to be under the care of the institution’s student health program and the specific health care providers who are providing treatment to students. These providers remain responsible for maintaining proper clinical care, including a continuity of care, within the scope of their professional licenses. Therefore, understanding states’ professional licensure rules and requirements, and the limits that may apply to providers needing to shift to cross-state practice of their student populations, is critical.
In the face of COVID-19, a number of states, such as Maryland (5), Mississippi (6), and Massachusetts (7), are temporarily modifying professional licensure requirements (3), allowing out-of-state licensed mental health practitioners to provide services within their states, either by temporarily waiving professional licensure requirements or by modifying such requirements so providers may expeditiously obtain temporary licenses to practice.
On March 24, 2020, the Secretary of HHS issued a letter to all state Governors, urging all states to offer licensure modifications or waivers in response to the national public health fight against COVID-19. (8) Many states already have taken action and more are expected to follow and take similar actions.
Depending on the breadth and nature of each state’s changes, we recommend tracking not only the licensure requirements in your primary state of practice but also the state(s) in which your student patient populations are located, either permanently or temporarily, during the period of the current national public health emergency. We also recommend that certain cautionary measures be taken by providers, including:
- As a best practice, all mental health providers should confirm a student’s location and a unique identifier, such as a phone number or a school-assigned email address, for the student at the beginning of each telehealth visit. If possible, the confirmation of a student’s location should be completed prior to each visit, either via email or another standard method of communication with the student.
- For students who have remained in the state where the college or university is located, a provider may continue offering mental health services (e.g., therapy, medication management) as planned, provided the student agrees to continue receiving such services via telehealth. Providers should, as a best practice, document a student’s consent to receiving services in this manner. If a student already has been receiving mental health services by remote means, care can continue as it did previously, without any changes.
- For students who are not physically present in the state where the college or university is located, a provider may continue providing mental health services as long as they hold a license in the state where the student is located or, if that state has (by law, regulation, or executive action) created a professional licensure exception during the national emergency, follow the guidelines set by such an exception to continue providing treatment. If a provider is not licensed in the state where the student is located and that state has not created a temporary exception to the state’s professional licensure requirements, the provider should not continue providing therapeutic services and, instead, should arrange to refer the student to a provider who is duly licensed in the state where the student is located during this temporary period of time.
For up to date information regarding state professional licensure changes, providers can refer to the Center for Connected Health Policy group, which is providing near-real time updates on COVID-19 policy change, as well as Epstein Becker Green’s Coronavirus Resource Center website.
What activities fall under the definition of telehealth, and does this definition differ across state lines?
Yes, while there can be significant overlap, the term “telehealth” is not uniformly defined across individual states. Understanding unique state definitions of what constitutes “telehealth” is especially important in determining your chosen virtual care delivery method. All college and university counseling centers should check relevant state laws prior to implementing any telehealth-based technology solution. For example, while some states, including Arkansas, have rigid definitions that prohibit interactive audio (i.e., telephone calls without video),9 other states, including North Carolina, offer a more flexible approach such as using a modality that supports “telepractice, electronic therapy, distance therapy, video-conferencing”, (10) which could include asynchronous messaging or store and forward prescribing. To be safe, real-time audio and video technology is recommended whenever it is feasible. Epstein Becker Green has created an easy-to-use app that allows users to search and review telehealth laws unique to each state. (11)
There are so many telehealth options out there. How do we choose a HIPAA-compliant platform that is accessible, while also helping providers maintain a clinical relationship similar to in-person care?
During the COVD-19 national public health emergency, HHS has issued a Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency. In so doing, the Office of Civil Rights within HHS (“OCR”), the division within the agency that is tasked with the enforcement of HIPAA violations, has stated that it will exercise its enforcement discretion regarding regulatory non-compliance of HIPAA with respect to those covered providers who are, in good faith, providing telehealth services during the COVID-19 national emergency. This would apply to the provision of telehealth services used with non-public facing audio or visual communication platforms that might not otherwise be deemed to be HIPAA-compliant12. However, it is important to note the specificity of OCR’s waiver, in that the guidance recommends that providers wanting to utilize telehealth technology in good faith should choose a remote, non-public facing platform that promotes communication with patients and that is adequate to maintain the quality of diagnosing and evaluating patients, as well as ongoing treatment visits.
Selecting an interactive real-time audio-visual option is recommended by HHS, because the real-time video feature offers clinical insight into non-verbal cues that may not be accessible through messaging or real-time audio-only technology. (12) Furthermore, messaging platforms, although secure, are also more prone to privacy issues, given how easy it is to copy and paste information, as well as the fact that there is no supporting, written form of the visit content through video.
Guidelines for the use of technology, issued by the IT departments at colleges and universities, may create further challenges for higher education providers. Some college and university partners have informed us of issues with implementing certain platforms due to complications with the primary vendor contract in place with the university.
Our next blog post will focus on changes made to the HIPAA Rules and their implications on practice via telehealth.
The above information has been reported to the best of our knowledge, and with the understanding that both federal and state guidance continues to evolve rapidly. We recommend referring to relevant federal and state government websites frequently (e.g., HHS, CMS, DEA, OCR, SAMHSA) for the most current guidance. To stay up to date with the latest regulatory changes, reference Epstein Becker Green’s Coronavirus Resource Center.
- The White House. Published on March 13, 2020. Accessed at: https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/
- U.S. Department of Health and Human Services. Published January 31, 2020. Accessed at: https://www.hhs.gov/about/news/2020/01/31/secretary-azar-declares-public-health-emergency-us-2019-novel-coronavirus.html
- U.S. Department of Health and Human Services. Published March 13, 2020. Accessed at: https://www.phe.gov/emergency/news/healthactions/section1135/Pages/covid19-13March20.aspx
- The Centers for Medicare and Medicaid Services. Published on: XXX. Accessed at: https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet
- The Office of Governor Larry Hogan. Published on: March 16, 2020. Accessed at: https://governor.maryland.gov/2020/03/16/governor-hogan-orders-closure-of-bars-and-restaurants-announces-unprecedented-public-health-surge-to-combat-covid-19-crisis/
- The Mississippi State Board of Medical Licensure. Published on: March 15, 2020. Accessed at: https://www.msbml.ms.gov/sites/default/files/news/20200324161355.pdf
- Commonwealth of Massachusetts. Published on: March 17, 2020. Accessed at: https://www.mass.gov/doc/march-17-2020-registration-of-health-care-professionals-order/download
- American Association of Nurse Practitioners. Published on March 25, 2020. Accessed at: https://www.aanp.org/news-feed/aanp-applauds-administration-call-to-combat-covid-19-pandemic-by-expanding-access-to-np-provided-care
- AR Code 23-79-1601(7). Accessed at: https://law.justia.com/codes/arkansas/2017/title-23/subtitle-3/chapter-79/subchapter-16/section-23-79-1601-d-1/
- N.C. Social Work Certification and Licensure Board. Published February 2017. Accessed at: https://www.ncswboard.org/files/Position_Stmt_on_Tech_Facil_Services_Amended_2017.2.1.pdf
- Epstein Becker Green. Telemental Health Laws App. Accessed at: https://www.ebglaw.com/telemental-health-laws-app/
- The Office for Civil Rights, Department of Health and Human Services. Accessed at: https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html