Telehealth Update – March 2022 Legislation, Remote Patient Monitoring Usage & Privacy

Recent Government Initiatives

 Congress continues to consider making COVID-era telehealth waivers permanent.  As a component of the Consolidated Appropriations Act, 2022, which was signed into law on March 15, several telehealth waivers were extended for Medicare beneficiaries beyond the end of the public health emergency.  This approximately five-month extension includes waivers on:

  • Originating site, including the patient’s home
  • Expansion of eligible practitioners
  • Telehealth services under Federally Qualified Health Centers and Rural Health Clinics
  • Audio-only services

The Act also includes a requirement that the Medicare Payment Advisory Commission (MedPAC) study the expansion of telehealth services and that HHS provide public data on telehealth utilization.

Along with the many telehealth bills currently under consideration in Congress, the “Hospital Inpatient Services Modernization Act” was introduced in March which would allow health care systems to provide hospital services outside their walls.  This act extends the CMS Acute Hospital Care at Home program.  Originally introduced in November of 2020 to enhance hospital capacity, the program allows specific hospital systems flexibility in providing acute care at home for patients with certain conditions.  Telehealth services are a key component of this program through virtual access to nurses and other health care providers and remote patient monitoring.

The Office of the Inspector General, Health and Human Services, along with many interested professional and industry organizations, support permanent telehealth expansions.

State laws and regulations concerning telehealth are varied.  Many states relaxed their state licensure laws for health care providers during the pandemic, and some have made those changes permanent.  Florida, Arizona, West Virginia, Kansas, and Connecticut have issued various flexible licensing for practitioners to provide telehealth services.  Thirty-five states, the District of Columbia and Guam are currently members of the Interstate Medical Licensure Compact, which allows eligible physicians to become permanently licensed in the participating jurisdictions.  As discussed in The National Law Review, providers of telehealth services must continually monitor the evolving regulations on a state-by-state basis, not only in regard to licensure, but also the establishment of patient-provider relationships, the use of telehealth modalities, and reimbursement issues.

telemedicine 2022

Status of Telehealth Use

While providers enjoy the convenience of telehealth, more than half the providers in a recent survey noted difficulty in managing unrealistic patient expectations and frustration with the quality of care they can provide.  According to the FAIR Health Monthly Telehealth Regional Tracker, the top diagnoses claims were mental health conditions (55%), acute respiratory diseases and infections, COVID-19, joint/soft tissue issues and developmental disorders.  The most recent Peterson-KFF Tracker revealed outpatient telehealth visits have declined since the early months of the pandemic, from 13% of outpatient visits in the first six months, to 8% in March-August, 2021.  A surge in utilization was noted with the Omicron variant in December 2021.

Remote Patient Monitoring: Usage and Privacy

In a recent piece in JAMA, physicians noted that the “pandemic accelerated the move to monitoring and therapy based on patient risks and needs.”  This remote patient monitoring (RPM) includes metrics such as blood pressure, heart rate, EKG, pulse oximeter, and temperature.  Integration with the electronic medical record is key, and could ultimately reduce hospitalizations, relieve documentation requirements of staff, and improve outcomes.  Another study revealed that skilled nursing facility residents benefit from telemedicine by allowing them to stay in place for treatment rather than being transported to the emergency room.

The increased use of remote patient monitoring also increases the potential for privacy and security breaches.  As reviewed in the Journal of the American Health Information Management Association (AHIMA), HIPAA needs to keep pace with technological advances, including, but not limited to facial recognition and full dialogue generated during a telemedicine visit.  Popular services such as Skype, FaceTime, and other social media platforms do not provide encrypted video conferencing.  The responsibility is on the health care provider to ensure that RPM data that is transmitted to, stored by, and used by the provider is HIPAA compliant

Providers and patients must be aware that social media and consumer wearable devices do not fall under HIPAA protections.  Many consumer RPM vendors are subject to Federal Trade Commission (FTC) regulations as opposed to HIPAA Privacy and Security.  In response the proliferation of devices that collect sensitive health information, the FTC issued a policy statement in September 2021 titled Breaches by Health Apps and Other Connected Devices.  In part, breaches to the policy requires notifications to affected individuals and the media of any unauthorized access to personally identifiable health information.

Excelas continues to monitor legislation and advances in telehealth technology, including the implications of documentation, privacy, and security surrounding integration in the electronic health record.

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