On March 26, 2020, the DOH revised its Order on dental emergency procedures in Pennsylvania to make it consistent with the CDC’s recommendations for such procedures.  Link to revised Order can be found here:  PA DOH Dental Guidance.  Previously, the Order effectively forced most dental practices and facilities to close, as it was too restrictive.  Now, the DOH is directing all facilities to cease all dental treatment, except for urgent and emergency procedures that the facility can perform in accordance with the DOH’s revised requirements.  Please see the Guidance/Order for details.

In short, urgent and emergency dental procedures can be performed on asymptomatic patients who are not suspected or confirmed to have COVID-19, as long as certain screening efforts are taken.  For patients who have potential symptoms of COVID-19, the facility is not permitted to perform urgent or emergency dental procedures, unless it meets the additional requirements set forth in this Order.

If you have any questions regarding whether your practice or facility should stay open to perform certain procedures, please feel free to contact us or knowledgeable legal counsel.

Note that the Order continues to permit dentists to conduct teledentistry with patients experiencing “true emergencies related to pain/infection, as they might be treated with antibiotics and pain medication.”   PA Gov. Wolf has already authorized the provision of telehealth in Pennsylvania by dentists and other licensed professionals, provided that it is performed in accordance with federal law, including, but not limited to, the guidance from the U.S. Department of Health and Human Services regarding HIPAA and telehealth during the Nationwide Public Health Emergency (see HIPAA COVID-19 Telehealth Guidance).  Accordingly, a practice with teledentistry capabilities may stay open under this Order to treat emergencies related to pain and infection through teledentistry.

If you have any questions about providing teledentistry in your office for emergencies, please do not hesitate to contact us.

 

Over the last several weeks, the CDC has issued and updated specific guidance on the COVID-19/Coronavirus pandemic for health care professionals on its website (accessible here: CDC Coronavirus – Health Care Professionals) and has advised health care facilities and clinicians (including physicians and dentists) to “prioritize urgent and emergency visits and procedures now and for the coming several weeks.” (See:  CDC Guidance for Health Care Clinics). For further details, please see our post: Coronavirus Resources for Physicians and Dentists.

In connection with the CDC’s guidance and advisories (many of which have been echoed by State Governors and Departments of Health), we are recommending that health care practices and facilities consider implementing a COVID-19/Coronavirus Patient Notice and Acknowledgement Form.

A detailed analysis regarding the implementation of COVID-19/Coronavirus Patient Notice and Acknowledgement Forms can be found in our Client Alert on the firm’s Coronavirus Resources page.

If you have any questions regarding the implications of the COVID-19/Coronavirus pandemic on your practice or facility, or would like assistance preparing any patient notices, acknowledgement forms and/or policies, please do not hesitate to contact us.

Fellow Fox Rothschild LLP attorneys Margaret J. Davino, Salvatore J. Russo and Nawa A. Lodin generously contributed this post.

On March 17, 2020, the Centers for Medicare & Medicaid Services (CMS) broadened access to Medicare telehealth services to allow Medicare patients to receive more services from their doctors without travel to a health care facility.  This benefit is available on a temporary and emergency basis under the 1135 waiver authority and Coronavirus Preparedness and Response Supplemental Appropriations Act, to provide telemedicine services during the national emergency declared regarding COVID-19.  [See Medicare Telemedicine Healthcare Provider Fact Sheet].

Before this new waiver, Medicare paid only for telehealth when the patient was in a designated rural area and left the home and went to a clinic, hospital or certain other types of medical facilities for the service.  Now, Medicare can pay for office, hospital and other visits furnished via telehealth across the country including in patient’s places of residence, retroactive to March 6, 2020.  A range of providers, such as doctors, nurse practitioners, clinical psychologists and licensed clinical social workers, will be able to offer telehealth to their patients.  Additionally, the HHS Office of Inspector General (OIG) is providing flexibility for health care providers to reduce or waive cost-sharing for telehealth visits paid by federal health care programs.

Also, effective immediately, the HHS Office for Civil Rights (OCR) will exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency.  [See Emergency Situations: Preparedness, Planning, and Response, from HHS.]

Medicare Telehealth Visits 

Starting March 6, 2020 and for the duration of the COVID-19 public health emergency, Medicare will pay for professional services to beneficiaries in all areas of the country in all settings (instead of the limited originating sites listed before March 6).  For this Medicare telehealth visit, the provider must use an interactive audio and video telecommunications system that permits real-time communication between the distant site and the patient at home.  Although Medicare normally requires the patient to have a prior established relationship with a particular practitioner, HHS will not conduct audits to ensure that such a prior relationship existed for claims submitted during this public health emergency.  These visits are considered the same as in-person visits and are paid at the same rate as regular in-person visits.

The Medicare coinsurance and deductible would generally apply to these services.  However, as noted, the OIG is providing flexibility for health care providers to reduce or waive cost-sharing for telehealth visits paid by federal health care programs.

Other Medicare Telehealth Visits

The CMS Fact Sheet reminds providers that there are two previously-existing types of telehealth services:  (1) virtual check-ins; and (2) e-visits.

Virtual check-ins:  In 2019, Medicare started reimbursing in all areas (not just rural areas) for established Medicare patients in their homes to have a brief communication service (virtual check-in) with practitioners via a number of communication technology modalities, including synchronous discussion over a telephone or through video or image (unlike Medicare telehealth visits, which require audio and visual capabilities for real-time communication).  The practitioner may respond to the patient’s concern by telephone, audio/video, secure text messaging, email or use of a patient portal.   The communication may not be related to a medical visit within the previous seven (7) days and cannot lead to a medical visit within the next 24 hours (or soonest appointment available).  The patient must verbally consent to receive virtual check-in services. The Medicare coinsurance and deductible apply to these services.  In addition, separate from these virtual check-in services, captured video or images can be sent to a physician (HCPCS code G2010).

E-visits:  In all types of locations including the patient’s home, and in all areas (not just rural), established Medicare patients may have non-face-to-face patient-initiated communications with their doctors without going to the doctor’s office by using online patient portals.  The patient must generate the initial inquiry and communications can occur over a seven-day period.   The services may be billed using CPT codes 99421-99423 and HCPCS codes G2061-G2063, as applicable.  The patient must verbally consent to receive virtual check-in services. The Medicare coinsurance and deductible would apply to these services.

State Law

This CMS Fact Sheet does not change state laws (e.g., state licensing laws that require that a physician be licensed in the state in which the patient resides) or state Medicaid requirements.  The New York State Department of Financial Services just published this notice yesterday relaxing reimbursement provisions for telehealth services:  https://www.dfs.ny.gov/system/files/documents/2020/03/re62_58_amend_text.pdf.  Note also the NJ Telemedicine Act, N.J.S.A. 45:1-62 et seq., which (among other things) requires a physician to provide the patient with certain information, including his or her professional credentials, before engaging in telemedicine and requires a physician to establish a provider-patient relationship before prescribing medication to the patient.

If you have any questions on engaging in telemedicine or telehealth in your practice, please do not hesitate to contact us or knowledgeable legal counsel.

***UPDATE:  Effective as of March 21, 2020, the PA DOH has issued guidance on what medical procedures are permitted in ASFs.  The DOH also updated its order regarding dental procedures.  This post has been revised to reflect this guidance.

PA Ambulatory Surgical Facilities

As the COVID-19 outbreak has developed, the DOH has modified its guidance on what procedures may be performed by licensed ambulatory surgical facilities.  The DOH guidance from March 20, 2020 can be found here: PA DOH ASF Guidance on Procedures

ASFs must review all scheduled elective surgeries and procedures and develop and implement a plan to postpone or cancel them, if they have not done so already.  As of 12:00 a.m. on March 21, 2020, ASFs may not perform any elective surgeries or procedures unless the surgeries or procedures are “life-sustaining measures relating to a progressive disease, such as cancer, vascular disease or organ failure.”  ASFs must consult CMS’s guidelines on elective surgery and procedure recommendations when making cancellation decisions, but also must comply with the DOH’s standard for such surgeries or procedures.

On March 26, 2020, the DOH issued another Order, which is not available online but was distributed to ASFs in PA, that directs all ASFs to report all surgeries performed on a daily basis to the DOH using the Ambulatory Surgical Facilities Survey.  If you have not received a copy of this Order, please contact the DOH immediately to request it.

PA Dental Offices and Facilities

On March 26, 2020, the DOH revised its Order on dental emergency procedures in Pennsylvania to make it consistent with the CDC’s recommendations for such procedures.  Link here:  PA DOH Dental Guidance.  Previously, the Order effectively forced most dental practices and facilities to close, as it was too restrictive.  Now, the DOH is directing all facilities to cease all dental treatment, except for urgent and emergency procedures that the facility can perform in accordance with the DOH’s revised requirements.  Please see the Guidance/Order for details.  In short, urgent and emergency dental procedures can be performed on asymptomatic patients who are not suspected or confirmed to have COVID-19, as long as certain screening efforts are taken.  For patients who have potential symptoms of COVID-19, the facility is not permitted to perform urgent or emergency dental procedures unless it meets the additional requirements set forth in this Order.

If you have any questions regarding whether your practice or ambulatory surgical facility should stay open to perform certain procedures, please feel free to contact us or knowledgeable legal counsel.

 

**For General Guidance on COVID-19 for Dental Practices, please see our post Coronavirus Resources for Physicians and Dentists.

Dentists should also be aware of the following guidance:

  • State Governors have issued directions to all industries regarding the outbreak.  Know what your Governor has said about dental practices (or health care practices in general).
  • The CDC has now advised healthcare facilities and clinicians (including dentists) to “prioritize urgent and emergency visits and procedures now and for the coming several weeks.”  Specifically, the CDC has advised that all routine dental exams and elective procedures be postponed.  See:  CDC Guidance for Health Care Clinics
  • The American Dental Association (ADA) has issued a statement recommending that “dentists nationwide postpone elective procedures for the next three weeks.”  The ADA recognizes that “it is up to dentists to make well-informed decisions about their patients and practices,” but may change its recommendation in light of the CDC’s position.  The ADA will update its recommendation on an ongoing basis.  Stay tuned to this Blog for details.
  • State Dental Associations and some State Boards of Dentistry are echoing the ADA’s recommendation.  Be sure to check the the websites for these Associations and Boards for updates.  Note that failure to comply with direction from your State Board of Dentistry could result in adverse action against your dental license.
  • State Departments of Health are issuing guidance on preventing transmission of COVID-19 and reporting cases.  Check your State Department of Health’s website for more information.  For guidance from Pennsylvania Department of Health, see this link: PA DOH Guidance for Health Care Providers
    • ***UPDATE: As of March 22, 2020, the Pennsylvania DOH has issued guidance directing all dental offices and facilities to close, except to the extent that they can perform emergency procedures in accordance with very strict physical environment, filtration and sanitation guidelines.  Please see the DOH Guidance here:  DOH Guidance Restricting Dental Emergency Procedures
  • The American Academy of Oral and Maxillofacial Surgery (AAOMS) has issued detailed guidance for oral and maxillofacial surgery practices (see: AAOMS COVID-19 Guidance).  Although similar to the ADA’s guidance, the AAOMS goes farther and asks oral surgeons to determine whether the patient’s need for surgery is “essential and immediate,” following “extensive discussions” with the patient.

Finally, when their practices are open, dentists should seriously consider use of patient notices regarding the practice’s policy on COVID-19, patient acknowledgement forms to screen for symptoms and recent travel, and a proactive rescheduling policy for at-risk patients.   See our post COVID-19 Patient Notice and Acknowledgement Forms for more information.

If you have any questions on what is best for your dental practice, please do not hesitate to contact us.

With the recent outbreak of the Coronavirus (COVID-19) and the significant governmental actions being taken at federal, state and local levels, physicians and dentists around the country are seeking guidance on how to continue to treat patients while ensuring that the health of their employees and patients is protected.

Whether your practice is open or temporarily closed, you may be wondering how you should handle patients who show potential symptoms of COVID-19 or have recently traveled abroad.  You may also be wondering how you should handle employee concerns about the dangers of COVID-19 in the workplace, or whether your employees may be eligible for unemployment compensation benefits.

From a business perspective, you may have concerns about the impact of COVID-19 on your contracts with vendors or your office lease.

Fox Rothschild LLP has established a Coronavirus Resources Center with articles, presentations and blog posts on these issues and more.

With respect to workplace and employee matters, see our article on Coronavirus Workplace Considerations for Employers and the Labor & Employment section of our Coronavirus Resources Center.

For info on the new federal law mandating paid sick leave and FMLA, and the tax credits for employers who are required to pay it, see this article:  Federal Law Mandating Paid Sick Leave and FMLA.

For a perspective on contracts with third parties, see our article on Force Majeure Clauses.

Here are some considerations to keep in mind from a health care law perspective as the country continues to work through this pandemic:

  • The CDC has issued guidance on COVID-19 for health care professionals on its website (accessible here: CDC Coronavirus – Health Care Professionals).  Precautions taken by heath care professionals should be consistent with CDC guidance, including, but not limited to, frequent and thorough cleaning and sanitization.  See this guidance: CDC Cleaning and Sanitization Requirements for Health Care Professionals
  • The CDC has also advised healthcare facilities and clinicians (including physicians and dentists) to “prioritize urgent and emergency visits and procedures now and for the coming several weeks.”  Specifically, the CDC has advised that all routine dental and eyecare exams, as well as elective procedures, be postponed.  See:  CDC Guidance for Health Care Clinics
  • Seriously consider posting patient notices on your main office door, at the front desk, and on your practice’s website.  Notices can also be sent by email to patients of your practice.  These notices can explain how your practice will handle patients with symptoms of COVID-19 and those who have recently traveled abroad.
  • The notices can also be used to inform patients of the following:
    • Whether your practice treats or tests for COVID-19 (if a medical practice).
    • General information on what patients should do if they exhibit symptoms.
    • When patients will be required to reschedule an appointment.
    • How patients can reschedule an appointment.
    • Whether the practice will proactively reschedule appointments for patients whom a health care practitioner has determined should reschedule their appointments (due to being at higher risk).
    • The practice’s cleaning and sanitization policy.
    • Where patients can obtain more information on COVID-19.
  • Seriously consider implementing a Patient Notice and Acknowledgement Form to:
    • Screen patients for symptoms of COVID-19 or travel abroad;
    • Document their receipt of the above-described patient notice; and
    • Obtain the patient’s acknowledgement that their appointment will be rescheduled if they exhibit such symptoms or have recently traveled abroad.
    • See our Alert on Patient Notice and Acknowledgement Forms.
  • Develop a policy and procedure on how to handle patients exhibiting symptoms of COVID-19 and when and how patient appointments will be rescheduled.  Train your employees on that policy and procedure.
  • Review your practice’s policies and procedures on employee safety and cleaning and sanitization, and consider a quick training session with employees on how to protect themselves from COVID-19 and other illnesses when interacting with patients.
  • Review your practice’s HIPAA Policies and Procedures Manual, especially with respect to remote access of employees to protected health information.  For more information, see our post on Fox’s HIPAA and Health Information Technology Blog regarding the ABCs for Working from Home for employees of covered entities under HIPAA.
  • Conduct additional cleaning and sanitization of your office in accordance with CDC guidelines.

If you have any questions on what is best for your practice from a legal perspective during the COVID-19 outbreak, or would like assistance preparing the patient notices, acknowledgement forms and/or policies described above, please see our Alert and do not hesitate to contact us.

Stay tuned to the Physician Law Blog and the Fox Coronavirus Resources Center for more information.

Join Elizabeth G. Litten and Mark G. McCreary, co-chairs of Fox Rothschild’s Privacy & Data Security Practice Group, in Fox Rothschild’s Exton, Pennsylvania office for a complimentary training on medical practice confidentiality and safekeeping obligations, as well as an update on recent HIPAA issues and best practices for employee training.

Hosted by Health Law Practice Co-chair Todd Rodriguez and Partner Al Riviezzo.

Who Should Attend: Medical practice health care professionals, including management-level practice administrators, physician leaders and key office staff.

Wednesday, November 13, 2019  |  8 – 10 am

Fox Rothschild LLP
747 Constitution Drive
Suite 100
Exton, PA 19341

Click here to register.

Questions? Contact 1.877.778.7369 or events@foxrothschild.com

Electronic Health RecordsBeginning on October 24, 2019, every licensed health care practitioner in Pennsylvania (excluding veterinarians) will be required to electronically prescribe controlled substances (regardless of the dosage) by sending the prescription directly to a pharmacy via the Internet.  Faxes will not qualify as an electronic transmission under the Law.

The primary goals of Act 96 of 2018, passed by the Pennsylvania General Assembly on October 24, 2018 (the “Law”), are to fight the opioid epidemic by using electronic prescriptions to minimize medication errors, and reduce prescription forgery, diversion and theft.  However, to be clear, this law requires practitioners to issue electronic prescriptions for all controlled substances, not just opioids.

There are a number of exceptions to the Law, including, but not limited to, the following:

  • Prescriptions for drugs dispensed by a pharmacy outside of Pennsylvania;
  • Prescriptions for drugs dispensed by the practitioner in-office;
  • Where there are temporary technological or electrical failures, provided that the practitioner seeks to correct any issue that is reasonably within his or her control within 72 hours;
  • By a practitioner or health care facility that does not have either internet access or an electronic health record system;
  • By a practitioner treating a patient in an emergency department or a health care facility when the practitioner reasonably determines that electronically prescribing a controlled substance would be impractical for the patient to obtain the controlled substance by electronic prescription or would cause an untimely delay resulting in an adverse impact on the patient’s medical condition; and
  • By a practitioner who has obtained a temporary exemption from the Law.

A practitioner or health care facility that does not meet an exception to the Law and is unable to timely comply with the electronic prescribing requirements may apply for a temporary exemption from the requirements based on economic hardship, technical limitations or exceptional circumstances.  The exemption will expire one year after it is issued or the date on which final electronic prescription regulations are issued by the PA Department of Health (whichever is earlier).  The application for temporary exemption may be completed electronically at this link: E-Prescribing Temporary Exemption Application

To comply with the Law, a practitioner must use an electronic health record (EHR) system or similar software that:

(1)  provides the capability to create an electronic prescription and send it to a pharmacy; and

(2)  is certified by the DEA as meeting the federal security requirements for electronic prescribing of controlled substances (for further information, see this link: DEA E-Prescribing Software Requirements).

Penalties for violating the Law are $100 per violation for the first 10 violations and $250 per violation thereafter, with a $5,000 per year cap.

Practitioners must document in the patient’s medical record when the practitioner is unable to electronically prescribe a controlled substance for the patient in any of the following scenarios:

(1)  a technological or electrical failure;

(2)  circumstances where an electronic prescription would cause an untimely delay resulting in an adverse impact on the patient’s medical condition;

(3)  where the pharmacy that receives the prescription is not set up to process electronic prescriptions; or

(4)  when transmission of the electronic prescription failed (in which case another can be submitted).

The PA Department of Health is required to issue regulations in connection with the Law by April 22, 2019.  FAQs regarding the Law can be found online at the following link:   E-Prescribing FAQs

Stay tuned to Fox Rothschild’s Physician Law Blog for further details.  If you have any questions regarding how the Law will affect your practice, please feel free to contact us.

Any practice (whether medical, dental or orthodontic) that provides patients with the opportunity to log-on to the practice’s website for scheduling, bill payment or other information should note that, as of July 1, 2019, the patient’s login credentials (i.e., username/email address in combination with a password or answer to a security question) will be considered “personal data” under New Jersey law.   The new amendment to the definition of “personal data” can be accessed here:  Amendment to NJ Personal Data Law

As with other “personal data” of residents in New Jersey (such as social security numbers, driver’s license numbers, or credit card numbers in combination with a security code), any business storing such information has an obligation to inform the affected person when unauthorized access to electronic files containing such information has occurred that would compromise the security, confidentiality or integrity of the information.  This obligation to inform also applies in instances where the business reasonably believes that unauthorized access of the information occurred (even if it cannot be confirmed).

In the event of an unauthorized disclosure (or “breach of security”), the business must notify the patient in “the most expedient possible and without unreasonable delay.”  [N.J.S.A. 56:8-163(12)(a)].

This new amendment to the law is a reminder that practices should consider the privacy and security of health information and personal information to be a critical component of practice administration.  Proper policies and procedures should be in place, staff should be properly trained, and the practice should address the security of its electronic systems and obtain meaningful cybersecurity insurance coverage.

With the rise of cybersecurity threats, it will continue to become more important for practices to properly, thoroughly and actively address the privacy and security of the health and personal data that they collect and store.  Seek out experienced legal counsel to guide you and your practice through this process, including, but not limited to, implementing adequate safeguards and plans to limit the unauthorized disclosure of personal information.

The New Jersey Out-of-Network Consumer Protection, Transparency, Cost Containment and Accountability Act (the “Law”), New Jersey’s “surprise” medical billing law, went into effect on August 30, 2018.  Among other things, it requires licensed health care professionals in New Jersey (including, but not limited to, physicians, physician assistants and nurse practitioners) that bill health benefits plans issued or delivered in New Jersey (“NJ Health Plans”) to make certain patient disclosures regarding participation in such plans.  Additional patient disclosures are required for health care professionals who are out-of-network with a patient’s NJ Health Plan.

The Law also sets forth a “baseball-style” arbitration procedure to resolve disputes between health care professionals and NJ Health Plans over claims for reimbursement for (1) out-of-network emergency or urgent care services, and (2) “inadvertent” out-of-network services (such as on-call, radiology and anesthesiology services).

Please see our recently issued Health Law Alert on this matter for details on compliance with the Law, including the patient disclosure requirements and the arbitration process.