This content was published prior to the combination of Dentons Davis Brown. Learn more about Dentons Davis Brown. 

Updated March 27, 2020 with new direction from Governor Reynolds about telehealth reimbursement.

On March 16, 2020, the Drug Enforcement Agency (DEA) removed the requirement that providers must conduct an in-person evaluation of a patient prior to prescribing a controlled substance during the time period within which COVID-19 is classified as a public health emergency. Registered providers may issue prescriptions for schedule II-V controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all of the following are met:

• The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice
• The telehealth service is conducted by audio-visual, two-way interactive communication (not store-and-forward asynchronous communication)
• The provider is acting in accordance with applicable Federal and State laws

Iowa Law

In Iowa, providers should still follow state law regarding the provision of telehealth services and prescription of controlled substances. However, on March 17, 2020, the Governor issued an emergency proclamation that suspended regulatory provisions that impose restrictions on telehealth or telemedicine services and require face-to-face interactions for health care providers. Also suspended were regulatory provisions related to requirements for residential/outpatient substance use disorder treatment and for face-to-face visitations. In addition, on March 26, 2020, the Governor issued a proclamation that directs the Insurance Commissioner to use all available means to ensure that health care providers are reimbursed for telehealth services on the same basis as if the provider performed the service in person. 

CMS Telehealth Guidance

On March 17, 2020, Centers for Medicare & Medicaid Services (“CMS”) provided guidance to expand Medicare coverage for telehealth, effective March 6, 2020, to allow physicians, nurse practitioners, physician assistants, nurse midwives, certified nurse anesthetists, clinical psychologists, clinical social workers, registered dietitians, and nutrition professionals to treat their patients via telehealth. Providers must use an interactive audio and video telecommunications system that permits real-time communication between the provider and patient. Medicare previously provided limited coverage for telehealth services, such as those services in certain rural settings. This expansion is currently subject to state law and in Iowa, providers should still follow state law regarding the provision of telemedicine services. For such providers, and particularly for those without current licensing board regulation on telehealth services, it is expected that Iowa state agencies will issue regulations and/or guidance to similarly encourage and expand the use of telehealth in Iowa.

Health and Human Services Office of Civil Rights

On March 17, 2020, Office of Civil Rights (“OCR”) published an announcement that it would temporarily suspend HIPAA enforcement to support telehealth service expansion efforts. OCR will not impose penalties for HIPAA noncompliance with respect to telehealth services, provided that the provider delivered the telehealth services in good faith during the COVID-19 public health emergency. Providers may use any non-public facing, audio and video remote communication to telecommunicate with patients (e.g., Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, and Skype). This announcement dovetails with OCR’s March 2020 bulletin, in which OCR indicated that it would not impose penalties with respect to certain HIPAA non-compliance during the COVID-19 public health emergency, including distributions of notices of privacy practices (NPPs) and executed business associate agreements (BAAs).   

Office of Inspector General

At the same time, OIG similarly announced that its office would give greater flexibility to health care providers waiving or reducing patient responsibility for telehealth visits. 

Impact on Providers

In these uncertain times when we are all being encouraged to take greater precaution when interacting with others, telehealth provides a solution for delivering medical care when visiting with a patient in person isn’t necessary. Providers looking to implement telehealth in their practice should consult with an attorney to ensure that the processes they implement fall within the waivers given by the federal and state agencies. It is always prudent to continue compliance efforts to the best of your ability, even with the waivers and provisions in place.