Nye Law Group, Ltd. is committed to helping therapists integrate tele-healthcare / video-healthcare into their practices legally. Our lawyers are up-to-date on the laws, regulations, and best practices related to ensuring HIPAA-compliance and confidentiality while offering virtual therapy and psychological services.
In response to the Covid-19 pandemic, the U.S. Department of Health and Human Services has suspended their enforcement of many of the HIPAA guidelines and Governor Pritzker of Illinois has amended or suspended many of the laws and regulations to allow mental health professionals to practice under the unique circumstances of the pandemic. * Please note that the rules are dynamic and several changes have already been amended and these amendments will revert to the current laws and regulations upon resolution of the pandemic or earlier.
COVID-19 Related Illinois State and Federal Accommodations:
Illinois policy commencing on March 9, 2020 and continuing until declared over provides as follows:
- “Telehealth Services” are expanded to include all health care, psychiatry, mental health treatment, substance use disorder treatment, and related services provided to a patient regardless of the patient's location via electronic or telephonic methods including, for example, FaceTime, Facebook Messenger, Google Hangouts, or Skype.
- Telehealth Services must be provided by Illinois licensed providers. However, reinstatement requirements of licenses that have lapsed or are inactive for less than three years are suspended with respect to: (i) proof of meeting continuing education requirements for one renewal period; and (ii) payment of the reinstatement fee.
- Health insurers (“Insurers”) may not impose: - - Utilization review requirements for Telehealth Services that are unnecessary, duplicative, or unwarranted or treatment limitations that are more stringent than those applicable to the health care services if provided in-person;
- Prior authorization requirements for in-network providers providing Telehealth Services related to COVID-19; or
- Cost-sharing obligations for Telehealth Services provided by in-network providers except for non-preventative care services for enrollees with high-deductible health plans who have not met the applicable deductible of the plan (note, however, based on recently issued IRS guidance, COVID-19 testing, treatment, and potential vaccination are considered “preventative care,”
- Covered entities subject to the Illinois Mental Health and Developmental Disabilities Confidentiality Act (“IL Mental Health Act”) may provide Telehealth Services through the use of a non-public facing remote communication product (g., FaceTime, Skype). If feasible, providers should notify patients that privacy risks may exist with the use of these applications and should not use public facing applications (e.g., Facebook Live, Twitch, TikTok).
Also commencing on March 19, 2020:
- Must cover the costs of Telehealth Services rendered by in-network providers for medically necessary covered services (presumably at the same rate as in-person services, but note that the Executive Order does not specifically address);
- May establish reasonable requirements and parameters for Telehealth Services (these requirements may not be more restrictive than those issued by the Department of Healthcare and Family Services); and.
- Must notify providers of any billing instruction.
- With regard to the provision of Telehealth Services to mental health and developmental disability patients in Illinois, the following requirements under the Illinois Mental Health and Developmental Disabilities Confidentiality Act are suspended:
- The disclosure prohibitions as to records and communications; and
- Written consent provisions.Emergency Amendments to Existing Medicaid Requirements for Telemedicine and Telepsychiatry to Beneficiaries:
Emergency Amendments to Existing Medicaid Requirements for Telemedicine and Telepsychiatry to Beneficiaries.
For medically necessary and clinically appropriate Telehealth Services provided on or after March 9, 2020 until the public health emergency no longer exists, the existing Illinois law (89 IL. Admin. Code §140.403) governing the Illinois Medicaid program coverage and reimbursement for telemedicine and telepsychiatry services has been amended as follows:
- The distant site provider must be an enrolled provider operating within his/her scope of practice and license. However, a physician or other licensed healthcare professional is no longer required to be present at all times with the patient at the originating site.
- The patient may be located at any originating site including his/her place of residence or other temporary location within or outside of Illinois.
- In addition to other Telehealth Services already covered under the existing statute, the following will be reimbursed: (a)Brief communications using technology-based services such as virtual check-ins that use audio-only real-time telephone interactions rendered by a physician, advanced practical nurse, or physician assistant who can report evaluation and management (E/M) services provided to an established patient not originating from a related E/M services provided within the previous 7 days nor leading to an E/M service or procedure within the next 24 hours or soonest available appointment. (b) Online patient portal or e-visit services provided to a patient with an already established relationship with the billing practice. The patient must generate the initial inquiry and verbally consent to receive virtual check-in services, and the communications must occur over a 7-day period.
- Behavioral health services detailed in §140.453 of the statute provided using audio-only real-time telephone interactions or video interactions will be reimbursed at the same rate as services provided on-site.
- Telehealth Services must be provided via: (a) “interactive telecommunication system” (i.e., audio and video equipment permitting two-way, real-time interactive communication); (b) “telecommunication system” (i.e., asynchronous store and forward technology or interactive communication system used to transmit data); (c) communication system where information is exchanged between the qualified healthcare practitioner and the patient during the course of synchronous telehealth services that would be sufficient to meet the key components and requirements of the same services when rendered face-to-face.
- Reimbursement for Telehealth Services will be the same rate as the same services if provided face-to-face.
- Adequate documentation for the Telehealth Services must be maintained in accordance with existing requirements (i.e., name and license number of providers at distant site; locations of distant and originating sites; date and time the Telehealth Services begin and end).
Providers should monitor additional billing instructions for the Telehealth Services from the IL Medicaid department at https://www.illinois.gov/hfs/Pages/coronavirus.aspx.
It is important to keep in mind that our country is dealing with an unprecedented set of complications and the rules have already changed several times and will probably continue to be fluid.
Tele-Health is the future of all healthcare practice and the Tele-Therapy modality of therapy provision is moving forward at full force. The VA has been using it for years to provide services to the veterans who do not have sufficient resources to provide affective therapy services without Tele-Therapy and during the Covid-19 pandemic all insurance providers who provide coverage for Illinois residents must cover the services. The concept of Tele-Health also incorporates video chatting and telephone communication. Even though there is a temporary suspension of many of the HIPAA regulations and Illinois restrictions, be aware of the HIPAA requirements and to the extent that maintaining HIPAA compliance is possible it is important to attempt to maintain compliance.
Dangers of Tele-Therapy / Tele-Healthcare:
There are no prohibitions to providing telephonic or video chat therapy at this time, and none in the foreseeable future. The main liability and/or licensure problems occurs with regard to billing, HIPAA, and out of state licensure practice. Illinois appears to have suspended its restrictions that Illinois licensed practitioners should provide services only to patients located within the state of Illinois, however, other states may not respect the temporary Illinois rule that allows practitioners to provide services to patients no matter where they are located.
According to HIPAA, modalities of communication such as email, text, or video chat are inherently insecure and therefore constitute a breach or deviation from the provisions of HIPAA. There are some encrypted programs available (what's app is purported to be encrypted and therefore HIPAA compatible – the actual security measures are unknown to this drafter and therefore Nye Law Group, Ltd. provides no advice with regard to any specific app, program, or company). Keep in mind that even though there is a temporary suspension of many of the HIPAA regulations and Illinois restrictions, be aware of the HIPAA requirements and to the extent that maintaining HIPAA compliance is possible it is important to attempt to maintain compliance.
Prior to the Covid-19 accommodations identified herein, it was common for a therapist to accept a phone call from a patient when that patient is in crisis and on vacation in another state or country the therapist, should he or she provide services to such a patients that therapist is practicing in that state or country without a license. Although it could be argued that not to assist the patient under these circumstances would be abandonment, in a non-emergent situation it is of common belief if a therapist is not licensed in the state where the patient is located the therapist is practicing without a license in that state. Should that state initiate licensure action alleging a therapist is practicing within a state without a license and that state determines that the therapist illegally practicing, Illinois would most probably discipline an Illinois licensed therapist by giving full faith and credit to the other state's findings, suspension, prohibition or other sanctions. How the department would perceive such a finding during the Covid-19 era is unknown.