Coronavirus FAQs

Have you heard anything about the Public Health Emergency (PHE) being renewed?

Yes!  It has already been renewed. So the PHE has been extended 90 days from January 21st. 

(Added 1/8/21)

I heard that the government just announced that state licensure for telemedicine is being waived.  What is this about?

You may have heard that the federal government has recently authorized healthcare providers to practice via telemedicine in states where they are not licensed. This is not accurate. While there was a recent HHS action, it has no impact on your practice of telepsychiatry. You still need to comply with state licensure requirements.

Here is information about HHS’s recent action:

The PREP Act is a federal law to manage the rapid development and deployment of medical “countermeasures” (COVID pandemic products such as diagnostics, treatments, and vaccines) during the federally-declared Public Health Emergency (PHE).

This law, and HHS’ Declarations under it, apply only to “covered persons’” use of “covered [pandemic] countermeasures”.

“Covered countermeasures” relate just to COVID treatment and are limited to:

1. a qualified pandemic or epidemic product - for COVID treatment
2. a security countermeasure
3. a drug authorized for emergency use only
4. a respiratory protective device determined by HHS to be a priority for use during the PHE

Here is another governmental definition of “covered countermeasure”:

“Antiviral, any other drug, any biological, any diagnostic, any other device or any vaccine used to treat, diagnose, cure, prevent, or mitigate COVID-19, or any device used in the administration of any such product, and all components and constituent materials of such products.”

In HHS’ December 3rd amendment to its PREP declaration, the federal government expanded access to COVID countermeasures via telehealth by authorizing healthcare personnel to use telehealth to order or administer only Covered Countermeasures for patients in a state other than the state where they are already permitted to practice. It does not authorize non-COVID treatment without a state license.

This limited federal waiver of state licensure applies ONLY to COVID-related covered countermeasures.

(Added 12/4/2020)

I keep hearing about cybersecurity and making sure my network is secure.  What exactly should I be asking to ensure a secure network?

The AMA has a resource with the questions you should be asking.

(Added 12/3/20)

I need practical guidance on cyber security for a solo practitioners.  Do you have any resources that I would find useful?

Yes!  

• PRMS cybersecurity resource
• From the AMA:
  • General considerations
  • Working from home

(Added 11/20/20)

Patient’s are refusing to get drug testing done for fear of catching COVID.  Any thoughts?

Yes - the American Society of Addiction Medicine has developed a useful guidance document.  

(Added 11/20/20)

I’ve heard that I can evaluate for buprenorphine based solely on a telephone evaluation.  Is that true?

In light of COVID, the DEA has relaxed many requirements.  Here are resources to review:

• DEA's COVID webpage
• DEA's guidance on telephone evaluation for buprenorphine

(Added 11/20/20)

During COVID, my patient’s are refusing to do things required under the FDA’s REMS for the medication I’m prescribing.  Has the FDA addressed this issue?

Yes!  You may find this resource from the FDA useful.

(Added 11/20/20)

I understand that the Public Health Emergency has been extended until January.  But some of the states where I have patients have an earlier expiration date.  Which date should I follow?

There are two different types of relevant emergency declarations:

1. Federal declaration of Public Health Emergency from HHS, currently set to expire Jan 20, but it could be extended again. This deadline is relevant for at least these waivers under federal law:

• HHS’ temporary waiver re:telemedicine technology (does not have to be HIPAA-compliant)
• DEA’s temporary waiver of in-person visit requirement prior to prescribing controlled substances
• DEA’s temporary waiver of DEA registration in patient’s state (in addition to prescriber’s state, if different)

2. Each state has its own deadline for when any emergency measure - such as waiver of state licensure requirements - ends. As with the federal waivers, these state deadlines could continue to be extended. 

(Added 11/9/20)

I’ve heard that the DEA waiver of the one in-person visit requirement before prescribing controlled substances has expired.  Is that true?

No.  The DEA did recently issue a Final Rule to finalize a regulation under the Ryan Haight Act.  The formal name for this law is the Ryan Haight Online Pharmacy Consumer Protection Act, and as the name indicates, the law’s primary focus is online pharmacies.  The in-person requirement is the DEA’s way to protect the public from prescriptions based solely on an online questionnaire.  The new Final Rule related to the Ryan Haight Act relates to online pharmacies and actually consists of minuscule changes to the Interim Rule covering the issue.  For more information on this new Final Rule:

• From the DEA.
• From an attorney blogger who focuses on DEA actions (not limited to telemedicine).

This Final Rule did, in the comments, cover the in-person requirement, but in the context of that requirement’s purpose - to protect the public from online pharmacies filling prescriptions based solely on an online form.

Interestingly, the comments note the DEA’s obligation to have issued a regulation for the telemedicine registration that was due October 2019.  The DEA indicated more on that would be forthcoming in the future.

The DEA’s temporary waiver of the in-person visit requirement due to the pandemic will expire when HHS declares the public health emergency  (PHE) expires.  The PHE is currently set to expire October 23rd, has already been been extended to January.  See next FAQ below.

While everyone doing telemedicine is hoping that the DEA will decide to not put this in-person visit requirement back into effect after the PHE expires, we do wonder if the DEA by mentioning this requirement in the Final Rule is signaling that it will go back into effect post-PHE.

(Added 10/5/20)

If I am treating patients in the state where I am licensed but am not currently in that state myself, do I need a license and/or DEA registration for the state in which I am currently located?

Presuming you are not just there for vacation, you should keep the following in mind:

• Before the Public Health Emergency (PHE), to prescribe controlled substances, you needed a DEA registration in the state where you are located as well as in the patient’s state, if different. See slide 36 of this DEA presentation.
  • Note that pre-PHE, the DEA often denied the registration in the patient’s state if the physician did not have a mailing address in the patient’s state.
  • During the PHE, the DEA has temporarily waived the requirement of having a registration in the patient’s state.
  • While we can hope this remains waived post-PHE, the DEA may go back to requiring the registration in the patient’s state.

If you have relocated to a new state:

• If you will treat patients in your new state, you need to ensure licensure requirements in your new state are met.
  • And you will need a DEA registration in that state to prescribe controlled substances. Depending on where your patients are located, and on whether the DEA again requires registration in the patient’s state post-PHE, you may be able to transfer your existing DEA registration to your new state.
• If you will not be treating patients in your new state:
  • Ensure you are meeting licensure requirements in your patients’ states
  • And check with your state’s licensing board to confirm no license in your state is needed since you are not treating patients in your state.
  • Note that if you need a DEA registration in your state, the DEA website currently says state licensure is required for a DEA registration.

(Added 9/2/2020)

SEEING NEW PATIENTS REMOTELY:

For those new patients that I am comfortable assessing for the first time remotely, I understand that I am able to do so.  Is that correct?

While this may technically be allowed during HHS’ declaration of a Public Health Emergency (PHE), it is important to think ahead about your continued ability to treat after the PHE expires.  

Pre-pandemic, whether an in-person visit was required varied by state, with most states not requiring it for the establishment of a treatment relationship.  However, in terms of prescribing, particularly controlled substances, there were limitations in many states, as well as from the federal government.

The PHE is currently set to expire in late July.  It can be extended at that point, or it can be discontinued earlier.  

Once the PHE is no longer in effect, the rules will change and there could be issues related to your treatment without an in-person visit, including but not limited to: 

• Licensure: If you are not licensed in the patient’s state, remember that state licensure waivers are temporary, and many have expiration dates (which could be prior to the PHE expiration date).  
• Prescribing: The federal government has been clear that the relaxation of controlled substances prescribing laws is only temporary.  So keep the following in mind for after the PHE:
• The in-person visit prior to prescribing controlled substances requirement will likely be back in effect.  It is possible that the federal government may require that one in-person visit for those patients previously prescribed controlled substances without an in-person visit.  Note that this could also be true under state law.
• The requirement of having a federal DEA registration in the patient’s state (as well as the prescriber’s state, if different) will likely be back in effect.  

(Added 5/8/20)

COVID-19:

What should I know about taking care of patients in this pandemic?

The Center for the Study of Traumatic Stress has put out a guide for psychiatrists discussing how you can help your patients deal with their responses to the COVID-19 pandemic. (Added 3/27/20)

BUPRENORPHINE PATIENTS:

I have many questions about treating buprenorphine patients, such as whether new and established patients can be tested by phone.  Where can I find answers?

SAMHSA has prepared FAQs.

(Added 4/8/20)

How do I address the necessary drug testing for my buprenorphine patients?

The American Society of Addiction Medicine (ASAM) has useful information on its website, www.asam.org.  There are also specific recommendations for adjusting drug testing protocols here.  (Added 3/26/20)

REMS:

I have patients on medications with a REMS.  The required lab monitoring cannot be done by home-bound patients.  Has the government relaxed any of these rules?

Yes – see this resource.  (Added 3/25/20) 

SEEING PATIENTS

What is going to happen when the pandemic ends – what will change?

That is currently the great unknown.  However, we do know the issues and what to watch for.  Please see our resource “PREPARING FOR WHAT’S NEXT – TO DO LIST”     

(Added 5/21/20)

I heard that the government just announced that state licensure for telemedicine is being waived.  What is this about?

You may have heard that the federal government has recently authorized healthcare providers to practice via telemedicine in states where they are not licensed. This is not accurate. While there was a recent HHS action, it has no impact on your practice of telepsychiatry. You still need to comply with state licensure requirements.

Here is information about HHS’s recent action:

The PREP Act is a federal law to manage the rapid development and deployment of medical “countermeasures” (COVID pandemic products such as diagnostics, treatments, and vaccines) during the federally-declared Public Health Emergency (PHE).

This law, and HHS’ Declarations under it, apply only to “covered persons’” use of “covered [pandemic] countermeasures”.

“Covered countermeasures” relate just to COVID treatment and are limited to:

1. a qualified pandemic or epidemic product - for COVID treatment
2. a security countermeasure
3. a drug authorized for emergency use only
4. a respiratory protective device determined by HHS to be a priority for use during the PHE

Here is another governmental definition of “covered countermeasure”:

“Antiviral, any other drug, any biological, any diagnostic, any other device or any vaccine used to treat, diagnose, cure, prevent, or mitigate COVID-19, or any device used in the administration of any such product, and all components and constituent materials of such products.”

In HHS’ December 3rd amendment to its PREP declaration, the federal government expanded access to COVID countermeasures via telehealth by authorizing healthcare personnel to use telehealth to order or administer only Covered Countermeasures for patients in a state other than the state where they are already permitted to practice. It does not authorize non-COVID treatment without a state license.

This limited federal waiver of state licensure applies ONLY to COVID-related covered countermeasures.

(Added 12/4/2020)

I understand that the Public Health Emergency has been extended until January.  But some of the states where I have patients have an earlier expiration date.  Which date should I follow?

There are two different types of relevant emergency declarations:

1. Federal declaration of Public Health Emergency from HHS, currently set to expire Jan 20, but it could be extended again. This deadline is relevant for at least these waivers under federal law:

• HHS’ temporary waiver re:telemedicine technology (does not have to be HIPAA-compliant)
• DEA’s temporary waiver of in-person visit requirement prior to prescribing controlled substances
• DEA’s temporary waiver of DEA registration in patient’s state (in addition to prescriber’s state, if different)

2. Each state has its own deadline for when any emergency measure - such as waiver of state licensure requirements - ends. As with the federal waivers, these state deadlines could continue to be extended. 

(Added 11/9/20)

PRMS INSURANCE POLICY

Is telepsychiatry covered by my professional liability insurance policy through PRMS?

Yes!

I recall seeing on the renewal application a question about whether I utilized telepsychiatry.  At that time I was not, and really never intended to, but believe I need to start using it now due to coronavirus.  Do I need to let PRMS know that I’m now doing it?

We expect that most policyholders will be doing some form of telemedicine during this public health emergency.  If your use of telemedicine is limited to the duration of the emergency, there is no need to notify us.  If your use of telemedicine is limited to the duration of the emergency, there is no need to notify us.  If after the emergent need to use telemedicine passes, you decide to continue using this treatment modality, then you would need to contact your Underwriter.

TELEPSYCH PLATFORM

I’ve heard that the government no longer requires me to get a Business Associate Agreement with the service I use for telemedicine.  Is that true?

The Office for Civil Rights, the agency within HHS responsible for enforcing the HIPAA Privacy and Security Rules, has temporarily ceased enforcing this requirement:  “OCR will exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.”  For more information, click here. (Added 3/17/20)

HHS’ declaration of a public heath emergency (PHE) has been renewed, effective April 26, 2020.  PHE declarations last 90 days, unless cancelled earlier. (Added 4/28/20)

How do I know which service to use?

The first suggestion is to consider the use of a true telemedicine platform (versus social media video-conferencing).  These vendors know about the HIPAA requirements. As noted above, OCR is temporarily waiving enforcement against covered entities not using HIPAA-compliant telemedicine platforms.  (Added 3/19/20)

Then consider the cost options.  While we cannot endorse or recommend specific platforms, we do know that there are several reasonably priced telemedicine platforms, and some even have a free plan for solo practitioners (that does include a BAA).  Two that we are aware of – but are not endorsing or recommending – are:

• VSee: may have temporarily discontinued the free service (modified 4/6/20)
• Doxy.me 

There are likely others out there.  When considering a free service, knowing that free is not a sustainable business model, you may want to ask the vendor what the catch is.  For example, are they selling aggregated data?

TELEPSYCH ETIQUETTE

I’ll be doing telepsychiatry for the first time.  I’m wondering about camera angles, what to wear, etc.  Are you aware of any guidelines?

Most psychiatrists have not had any training on telepsychiatry.  We have have developed tips for before, during, and after the telepsych encounter.  (Added 4/24/20)

Do you have any instructions I can give my patients to help them with telepsych visits?

Yes - this resource may be useful.

(Added 4/30/20)

LICENSURE

Has PRMS heard anything about waiver of state licensure requirements?

There does seem to be some movement. We are tracking the various actions in the states that are taking place – the governor allows the state licensing boards to waive licensure for out of state physicians, the boards choose to do so and can limit the waiver to very narrow circumstances.  Click here for what we have found so far in terms of enacted waivers. 

While this is encouraging, keep the following in mind:

• It may be that states have only cleared the way for the state licensing board to waive licensure requirements in the event they choose to do so.
• It is possible that these waivers may not apply to all medical specialties or to those who are not treating patients with Coronavirus.

Many of my colleagues are positive that they can see Medicare patients in states where they are not licensed.  They report that licensure requirements have been officially waived by Medicare / CMS / HHS.  Is this right?

There continues to be much confusion around this.  There is a waiver of state licensure requirements when treating Medicare patients, but that is only a waiver of a Medicare requirement for PAYMENT - it is NOT a waiver of state licensure requirements from the patient’s state licensing board.

For more information:

• From CMS:  CMS has “temporarily waive(d) Medicare and Medicaid’s requirements that physicians and non-physician practitioners be licensed in the state where they are providing services.  State requirements will still apply...This waiver does not have the effect of waiving State or local licensure requirements or any requirement specified by the State or local government as a condition for waiving its licensure requirements.”
• From the American Telemedicine Association: “This waives Medicare and Medicaid requirements that a provider be licensed in the state where the patient is, but does not preempt states’ licensing requirements.”
• From JDSupra article: “These waivers alone do not waive the requirement for physicians and other healthcare providers to maintain licensure in states where they are practicing a licensed profession, including via telehealth. State law continues to govern whether a provider is authorized to provide professional services in that state without holding active license from that state’s medical board.”

(Added 4/8/20)

I am intending to only treat patients via telepsychiatry who live in a state where I am licensed.  I am good to go, right?

Certainly you’ve eliminated what could be a significant barrier to telemedicine.  Just be sure that you are complying with the laws (related to telemedicine, prescribing, etc.) of both states.  As an example, this may be the first time in a long time that you are utilizing your license in the patient’s state.  You may learn that the patient’s state has requirements related to prescribing, such as a requirement that you check the Prescription Monitoring Program in the patient’s state prior to prescribing.

I have patients that see me in my office, but live in a different state where I am not licensed.  Given that I’m only doing telepsychiatry during this public health emergency, and it’s for continuity of care, I do not need a license in the patient’s state, right?

As noted above, we are hopeful that licensing boards will relax their licensure requirements during this exceptional time, and there is movement on this issue.  In addition to our list above, you can check the licensing board websites in the event waiver information is posted there.  (Added 3/19/20)

Presuming no waiver of licensure is available, there are some situations where you may decide to do the remote visit without the waiver.  For example, if you are in a border jurisdiction (such as Maryland, Virginia, and the District of Columbia), you may feel comfortable doing a few remote sessions without checking with the out of state board.  If you choose this option, you should not rely on it for any longer than the emergency lasts.

If I am treating patients in the state where I am licensed but am not currently in that state myself, do I need a license and/or DEA registration for the state in which I am currently located?

Presuming you are not just there for vacation, you should keep the following in mind:

• Before the Public Health Emergency (PHE), to prescribe controlled substances, you needed a DEA registration in the state where you are located as well as in the patient’s state, if different. See slide 36 of this DEA presentation.
  • Note that pre-PHE, the DEA often denied the registration in the patient’s state if the physician did not have a mailing address in the patient’s state.
  • During the PHE, the DEA has temporarily waived the requirement of having a registration in the patient’s state.
  • While we can hope this remains waived post-PHE, the DEA may go back to requiring the registration in the patient’s state.

If you have relocated to a new state:

• If you will treat patients in your new state, you need to ensure licensure requirements in your new state are met.
  • And you will need a DEA registration in that state to prescribe controlled substances. Depending on where your patients are located, and on whether the DEA again requires registration in the patient’s state post-PHE, you may be able to transfer your existing DEA registration to your new state.
• If you will not be treating patients in your new state:
  • Ensure you are meeting licensure requirements in your patients’ states
  • And check with your state’s licensing board to confirm no license in your state is needed since you are not treating patients in your state.
  • Note that if you need a DEA registration in your state, the DEA website currently says state licensure is required for a DEA registration.

(Added 9/1/2020)

STATE SPECIFIC REQUIREMENTS

I’ve never done telemedicine before, but I’m sure there are laws and regulations about it in the states.  If my patient is in a different state, do I just need to follow the requirements of just my state, or just the patient’s state, or both?

When remotely treating a patient in a different state, you will need to follow the requirements of both your and your patient’s state.

You can review the licensing board websites for both states, and search for telemedicine to find applicable statutes, regulations, and board policies.

If you cannot find any such telemedicine requirements for a state, you can follow the guidelines of the Federation of State Medical Boards.  This association of all state medical and osteopathic licensing boards has developed telemedicine guidelines, which some states have adopted as drafted, and other states have adopted modified versions of the guidelines. 

REIMBURSEMENT:

I’ve been contacted by a health plan and told I must provide written quality of care protocols and confidentiality protocols for telemedicine visits.  Do you have any resources?

In normal times, the health plan would typically be sending those telemedicine guidelines to you!  You should be able to easily create the requested protocols by using the model guidelines for telemedicine from the Federation of State Medical Boards (FSMB).  You can supplement these guidelines with any state-specific telemedicine standards that your state may have.  To find state requirements, you can search the internet for the name of your state licensing board and “telemedicine.”  You can also go directly to the board’s website and search “telemedicine.”  The FSMB has a directory of state licensing boards.

Many of my colleagues are positive that they can see Medicare patients in states where they are not licensed.  They report that licensure requirements have been officially waived by Medicare / CMS / HHS.  Is this right?

There continues to be much confusion around this.  There is a waiver of state licensure requirements when treating Medicare patients, but that is only a waiver of a Medicare requirement for PAYMENT - it is NOT a waiver of state licensure requirements from the patient’s state licensing board.

For more information:

 - From CMS:  CMS has “temporarily waive(d) Medicare and Medicaid’s requirements that physicians and non-physician practitioners be licensed in the state where they are providing services.  State requirements will still apply...This waiver does not have the effect of waiving State or local licensure requirements or any requirement specified by the State or local government as a condition for waiving its licensure requirements.”

 - From the American Telemedicine Association: “This waives Medicare and Medicaid requirements that a provider be licensed in the state where the patient is, but does not preempt states’ licensing requirements.”

- From JDSupra article:  “These waivers alone do not waive the requirement for physicians and other healthcare providers to maintain licensure in states where they are practicing a licensed profession, including via telehealth.  State law continues to govern whether a provider is authorized to provide professional services in that state without holding active license from that state’s medical board.”

(Added 4/8/20)

Is it true that CMS is now paying for more telephone sessions?

Yes!  For more information, click here.  (Added 5/11/20)