On March 19, in further response to the public health emergency that he declared on March 11, Louisiana Governor John Bel Edwards issued a proclamation announcing additional measures to combat the spread of the novel coronavirus in Louisiana. The proclamation specifically encourages the use of telehealth and further encourages all licensing boards that regulate the practice of medicine in Louisiana “to adopt emergency rules, if necessary,” to ensure that a healthcare provider will not be found to have acted unethically or to have violated any applicable licensing standards solely on the basis that the healthcare provider utilized telehealth in providing health care during the declared emergency. The proclamation also provides that a healthcare provider must (a) practice telehealth within the provider’s license, skill, training and experience, (b) meet the same standard of care as if care was provided in-person, and (c) continue to comply with rules applicable to prescribing controlled substances when doing so via telehealth.
Louisiana Telehealth Regulations:
In response to Governor Edwards’ pronouncements concerning the coronavirus, the website of the Louisiana State Board of Medical Examiners directs physicians to current Louisiana telehealth regulations (see Chapter 75. Telemedicine), which explicitly provide that furnishing medical assistance in the case of a declared state emergency is exempt from the requirements of such regulations. While the Board has not otherwise promulgated emergency rules governing the provision of telehealth during the declared emergency, the Louisiana telehealth regulations (from which physicians are technically exempt as a result of the declared emergency, but with which physicians can certainly comply without penalty) already grant Louisiana physicians wide latitude in providing telehealth services to Louisiana citizens under any circumstance, including that:
- A physician may be in any location at the time telehealth services are provided to a patient;
- A patient may be in any location in Louisiana, including his or her home, at the time telehealth services are provided;
- Provided a physician can examine a patient via telemedicine sufficient to make a diagnosis, controlled substances may be prescribed by telemedicine if the physician has had at least one in-person visit with the patient within the past year and the prescription is (a) for a legitimate medical purpose, (b) issued in conformity with the standard of care applicable to an in-person visit and (c) is permitted by applicable state and federal law, except that no physician may utilize telehealth for treatment of non-cancer related chronic or intractable pain or obesity;
- Although telemedicine is generally considered the interaction between a physician and a patient via simultaneous two-way video and audio transmissions, a physician may provide telemedicine only by interactive audio if, after access and review of the patient’s medical records, the physician determines that the same standard of care can be met as if the healthcare services were provided in person; and
- Secure communication technology must be used for telemedicine that, at a minimum, complies with all state and federal laws and regulations for medical/health information privacy and security (this language would appear to permit healthcare providers providing telehealth services to Louisiana citizens to follow federal guidance under any circumstance, including current federal guidance permitting telehealth services to be provided during the coronavirus national emergency through the use of personal phones using certain nonpublic-facing apps as described in greater detail in the section concerning Medicare below).
In addition to the guidance provided by Louisiana telehealth regulations, the Acting Louisiana Medicaid Director has provided additional guidance concerning the use of telemedicine by all providers rendering services to Louisiana Medicaid members, including all members of any Healthy Louisiana managed care organization, during the declared coronavirus emergency. Among other things, this guidance provides that:
- The use of telehealth is encouraged to decrease the potential for patient-to-patient transmission of the coronavirus in shared spaces (e.g., waiting rooms) as well as patient-to-provider transmission;
- Telemedicine may be used to (a) evaluate patients who report respiratory and systemic symptoms even in a non-emergency situation when a face-to-face visit is unnecessary, and (b) provide routine care for older patients or those with chronic illnesses for the purpose of reducing their exposure to healthcare facilities;
- There is currently no limitation on the originating site (i.e., where the patient is located when telehealth services are provided) and can include a healthcare facility, school or the patient’s home;
- A secure, HIPAA-compliant platform should be used if available, but if not, everyday communications technologies (e.g., audio/video cellular telephones) may be utilized; and
- Louisiana Medicaid will reimburse telephone evaluation and management services provided by physicians, nurse practitioners or physician assistants actively enrolled in fee-for-service Medicaid or a Healthy Louisiana managed care organization to established members (or caregivers of established members) who are actively experiencing symptoms consistent with the coronavirus (with certain exceptions if clinical decision-making dictates the need to see the patient for an office visit within 24 hours or during the next available appointment).
Finally, on March 17, the Centers for Medicare & Medicaid Services announced that it has lifted the rural area and originating site requirements for reimbursement of telehealth services during the coronavirus national emergency. Pursuant to this announcement, physicians and certain other healthcare providers will be reimbursed the same amount for telehealth services as for in-person visits regardless of where a Medicare beneficiary is located, i.e., even if the Medicare beneficiary is located at home, at the time telehealth services are provided. Further, the Office for Civil Rights, U.S. Department of Health & Human Services has relaxed HIPAA requirements and now permits telehealth services to be provided through the use of personal phones using apps such as facetime and Skype – but continues to prohibit the use of public-facing apps such as Facebook Live and TikTok. For additional information, please see Medicare Telemedicine Health Care Provider Fact Sheet and OCR Announces Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency.