Telemedicine Lawyers in Houston, TX
Counsel for Telehealth Compliance and Fraud Defense in Texas and Nationwide
Health care providers face many challenges in ensuring regulatory compliance for their practices, as well as harsh penalties for purported violations of state and federal laws.
Amid the novel coronavirus pandemic, which has accelerated the adoption of telemedicine and created new opportunities for providers across many specialties, even greater challenges and risks exist.
For those looking to enter the telehealth space, ensure compliance with constantly evolving laws, and protect themselves against devastating enforcement actions, experienced legal counsel is crucial.
Put Proven Telehealth Attorneys on Your Side
At Hendershot Cowart P.C., our health and medical law team is on the forefront of counseling practitioners, medical practices, and medical businesses in a range of telemedicine matters, including:
- Telemedicine practice set up, contracts, record-keeping, and prescribing / billing practices;
- Proactive compliance with state and federal telemedicine regulations, including telemedicine rules during COVID-19;
- Responsive intervention, risk-mitigation, and defense against telemedicine fraud investigations.
Backed by decades of experience, our award-winning attorneys serve providers throughout Houston, the state of Texas, and the U.S. To learn more about our telehealth legal services, call or contact us online.
Comprehensive Telemedicine and Telehealth Services
Telemedicine optimizes health care delivery, and it has blossomed into a necessity during the COVID-19 crisis. Though telemedicine may alleviate strain on the U.S. health care system, it poses many regulatory challenges and potential pitfalls for providers. That includes issues ranging from reimbursement, privacy, and contractual relationships to the numerous requirements of compliance.
With extensive experience counseling hospitals, practice groups, businesses, and providers from a broad range of specialties, Hendershot Cowart P.C. helps health care clients effectively address issues in the development and deployment of telehealth products and services. This includes:
- Practice set-up, corporate formation, and governing documents;
- Medical contracts, billing agreements, and contractual relationships;
- Medical licensure, credentialing, and privileges;
- Government and private payer reimbursement, including Medicare;
- Privacy and security requirements, including HIPAA compliance;
- Telemedicine technology outsourcing and licensing agreements;
- Online prescribing, FDA compliance, and lab tests;
- Retail / concierge medicine;
- Intellectual property and trade secrets;
- Texas’ prohibition against the corporate practice of medicine;
- Regulatory compliance, audits, and health care fraud investigations.
From behavioral health, psychiatry, primary care, radiology, neurology and dermatology to solo practitioners, hospitals, ICU's and massive health care systems, telemedicine’s presence in U.S. health care is rapidly expanding, and evidence of its benefits for improving patient experience and continuity of care is growing.
Those who wish to get ahead of the curve in identifying viable technologies, navigating regulatory minefields, and addressing compliance issues can find experienced allies in Hendershot Cowart P.C.
Telemedicine Practice Basics: Practice-Set Up and Compliance
Telemedicine and remote health services enable new methods and modalities of delivering care, and may include the use of:
- Synchronous technologies, including real-time, audio-video telehealth services, and real-time audio-only / telephone communications.
- Asynchronous tools and platforms, including “store-and-forward” technologies that collect data and images to be transmitted and interpreted, remote health monitoring tools that collect health information or biometric data, and online patient portals, messaging services, and smart phone applications.
- Other forms of audiovisual telecommunication technology that allows providers to comply with the standard of care (i.e. Texas Occupations Code Section 111.007).
Though telemedicine is becoming imperative for practices in search of financial stability amid COVID-19 and an evolving health care industry, implementation is a high-risk, complex endeavor. The American Medical Association, for example, notes hospitals take an average of 23 months to identify viable digital health solutions and implement them in their practices. Even small medical groups and solo clinicians can face months of leg work identifying, structuring, and implementing digital health services.
The challenges of telemedicine deployment stem from many barriers in setting up a compliant practice, including:
- Interstate Licensure: Telemedicine rules and regulations vary by state, which is why providers must ensure compliance with licensure, reimbursement, insurance, and other guidelines in the state where a patient receives care. Involving a legal team early in the process can help providers navigate federal, state, and payer requirements.
- Reimbursement: Practices must consider evolving telemedicine rules and reimbursement rates, as well as existing state and federal regulations, when devising reimbursement models and structuring compliant policies.
- Documentation and Record-Keeping: Documentation is critical to reimbursement, and practices must ensure clear records are maintained to comply with state or payer visit length requirements, coding and billing regulations, and more.
- Security and Privacy: Implementing telemedicine services requires practices to confront various concerns, including security and privacy rules, their own Intellectual Property, and compliance with various regulations, including HIPAA.
- Fraud and Abuse Penalties: Regulators have long scrutinized telemedicine and telehealth services for fraud and abuse, exposing those who deploy such services to greater risks of audits and health care fraud investigations that put considerable penalties on the table.
Telemedicine and Telehealth in Texas: What’s the Difference?
Texas has adopted robust telemedicine regulations to help close the gap in access to care created by a shortage of providers and large rural population. While these rules are evolving, Texas has a solidified telehealth parity law that requires private insurance companies, state employee health plans, and Medicaid to cover telemedicine and telehealth services, which state law defines differently.
Per Texas law:
- Telemedicine services are health services provided by a licensed health care professional or physician “under the delegation and supervision of a [Texas-licensed physician]” to a patient “at a different physical location… using telecommunications or information technology.”
- Telehealth services are health services delivered by a Texas-licensed health care professional to a patient “at a different physical location… using telecommunications or information technology.”
Though the terms are often used interchangeably, they have specific definitions under Texas law: only health professionals acting under a physician’s delegation / supervision provide telemedicine services.
1. Services / Standard of Care: Under state and federal laws, the same standard of care that applies to an in-person setting also applies to telemedicine. In Texas, covered telehealth services may include:
- Initial Consults
- Office or outpatient visits
- Psychotherapy and psychiatric diagnostic interviews
- Prescription management
- Data transmission, including patient monitoring in some cases
- Chronic health condition management (i.e. diabetes, hypertension)
2. Providers and Patients: In Texas, health care providers licensed in state and enrolled in Medicaid are eligible to provide telemedicine services, as are health professionals acting under a physician’s guidance or supervision. Examples of eligible providers include:
- Primary Care Physicians
- Certified Nutrition Specialists
- Advanced Practice Registered Nurse (APRNs)
- Nurse Practitioners (NPs) and Physician Assistants (PAs)
- Certified Nurse Midwifes
- Licensed professional counselors, psychologists / psychological associates / provisionally licensed psychologists, and marriage / family therapists
- Licensed clinical social workers
- Licensed dieticians
Eligible providers are required to establish a valid practitioner-patient relationship in order to furnish telemedicine services. In Texas, this means either:
- Having a pre-existing relationship (Occupations Code 111.006);
- Communicating with a patient pursuant to a TMB-compliant valid call coverage agreement; or
- Using appropriate technology, and complying with follow-up requirements, that provides access to necessary clinical information.
Providers billing federal payers must meet applicable requirements for practicing telemedicine in federally authorized settings. Medicare, for example, requires providers who furnish Part B services via “interactive telecommunications systems” to meet various conditions regarding technology, practitioner eligibility, and patient location. This includes requirements that telemedicine services be provided to beneficiaries at originating sites, which include:
- A provider’s office;
- A rural health clinic;
- A hospital / critical access hospital;
- A federally qualified health center;
- A skilled nursing facility;
- A community mental health center;
- A dialysis facility (for end-stage renal disease) or a person’s home for the purpose of ESRD dialysis;
- A mobile stoke unit.
Further, originating sites must be located in a qualifying geographic area (i.e. a health professional shortage area, rural census tract, or county outside a metro statistical area), with the exception of telehealth services for acute stroke, end stage renal disease, and substance use disorders.
3. Record-Keeping: Physicians must keep and maintain an “adequate medical record” of remote health services in the same manner as if they were provided in person.
COVID-19 UPDATE: Though a number of restrictions and requirements have traditionally existed for telemedicine services, some rules have been relaxed to increase the use of telemedicine during COVID-19. This includes CMS expanding Medicare coverage for a wider range of telemedicine services without having to visit providers or facilities in person, OIG cost-sharing waivers and reductions, and temporary suspension of HIPAA restrictions for providers who serve patients in good faith.
In Texas, this also includes directives to:
- Fast-track temporary licensing of out-of-state physicians and other providers;
- Extend license and permit expiration dates;
- Waive certain licensing requirements until the public health crisis declaration is lifted;
- Permit the use of telephone-only consultations to establish practitioner-patient relationships, and diagnose, treat, order tests, and prescribe medications for all conditions.
Other Requirements: While the pandemic has had big implications for digital health services, providers should still understand all applicable requirements in addition to evolving rule changes arising from COVID-19. This includes regulatory considerations such as:
- Interstate Telemedicine Licensing: Texas is not part of the Interstate Medical Licensure Compact, but out-of-state providers treating patients in Texas can obtain a telemedicine license to practice in state.
- Billing and Coding: Most providers billing telemedicine services through Texas Medicaid will need to include a “95 modifier” unless services already indicate remote delivery in the Texas Medicaid Telemedicine Provider Manual. Providers billing federal health programs, including Medicare, will need to ensure compliance with applicable coding and billing practices.
- In-Person Care: With the exception of mental health, Texas requires at least one in-person evaluation for their diagnosis or condition within the prior year for a patient to receive telemedicine services. Other in requirements also exist under federal law.
- Informed Consent: SB 1107 and TMB rules require providers who facilitate or provide telemedicine services to obtain the informed consent of a patient or an authorized individual.
- Prescribing: Providers must comply with remote prescribing regulations under state and federal law. The same standard of care for in-person treatment applies to prescribing via telemedicine.
- Mental Health Services: Mental health services provided via telemedicine in Texas are exempt from certain requirements, including those relating to provider-patient relationship. The Texas Medical Board does have rules specifically for telemedicine mental health providers.
- Privacy and Security: Telehealth services and providers furnishing remote health services must comply with various privacy and security regulations, including HIPAA, GDPR, and third-party license terms.
Telemedicine and Remote Prescribing
While electronic prescription technologies are being embraced by more providers as a means to reduce costs and errors, prescribing via telemedicine requires careful consideration of applicable regulations that can vary from state to state. In Texas, telehealth prescribers must abide by the same standards and requirements that would apply to in-person settings.
Telemedicine service providers must also ensure compliance with various federal regulations, including the Haight Act, the SUPPORT for Patients and Communities Act of 2018, and the Controlled Substances Act (CSA). Under federal law, providers must conduct at least one in-person evaluation of the patient in order to prescribe, and must meet circumstantial requirements in order to qualify under the Controlled Substances Act’s “practice of telemedicine” exception.
Providers looking to deploy a telemedicine program to prescribe medications and those who currently utilize remote prescribing should address all applicable regulatory considerations as part of a comprehensive compliance plan. This includes not only protocols to ensure compliance under state and federal laws, but also policies and procedures tailored to the patients being treated, their physical locations, the types of provider participants, and other aspects specific to a practice.
Telemedicine Fraud Defense
Telemedicine has long been a target for regulators on the lookout for waste, fraud, and abuse. The federal government has been especially focused on telemedicine services and violations involving medically unnecessary services, billing for services not rendered, durable medical equipment (DME), call centers, and prescriptions.
As such, providers and businesses engaged in telemedicine face significant exposure to audits, health care fraud investigations, and potentially devastating penalties over alleged violations of various fraud and abuse laws. These may include the Anti-Kickback Statute, Stark Law (physician self-referrals), and the False Claims Act (including whistleblower / qui tam cases).
At Hendershot Cowart P.C., our legal team helps clients mitigate liability exposure by developing comprehensive compliance plans proactively. We also provide immediate representation and early intervention counsel to minimize the impact of investigations and defend against various enforcement actions, such as OIG subpoenas and civil investigative demands.
Need Legal Counsel for Your Telemedicine Practice? Call Today.
Hendershot Cowart P.C. is intimately familiar with telemedicine laws, as well as the tremendous amount of health care regulations with which providers, practice groups, and business owners must comply. During uncertain times, we know these challenges can be magnified.
Because significant opportunity does exist in telemedicine, we have cultivated the multi-disciplinary approach needed to counsel clients who want to enter the space, ensure compliance, and protect themselves against risks and regulatory enforcement actions.
If you have questions about our services, or wish to speak with an attorney, contact us. We proudly serve health care clients across Texas and beyond.
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