How to Practice Telehealth as a PT, Legally
By Erin Jackson*
Is your practice considering going virtual due to COVID-19? Are you worried about how to legally practice physical therapy without touching your patient? Learn how to approach telehealth within this new environment.
Your patients have canceled appointments. You’re worried about the safety of your staff. If you’re like many health care practices, the spread of COVID-19 has forced you to close your physical office. Fortunately, telehealth has emerged as a means for health care professionals to serve their patients in the age of self-quarantine and social distancing. But how does one practice physical therapy in the realm of telehealth?
Quality of PT Care and Telehealth
During a transition to telehealth, it’s imperative to maintain the standard of care. Sure, it’s difficult. But the difficulty does not waive the requirement. A failure to render the same quality (though not the same type or form) of care often means that a practitioner has fallen below the standard of care.
When practicing physical therapy by telehealth, there are times when a therapist may determine that the patient needs hands-on treatment or manipulation. If hands-on therapy is medically-indicated or the patient cannot be appropriately evaluated without an in-person assessment, the physical therapist must inform the patient of this limitation and determine how to conduct an in-person visit. During the COVID-19 pandemic, the most medically sound option may be to postpone physical therapy.
How to Comply with Federal Telehealth Rules
In response to the COVID-19 crisis, the federal government has reduced the barriers to telehealth. At the same time, these changes have bred misinformation and confusion about the rules. It’s crucial that physical therapists understand the new legal landscape.
HIPAA Changes Don’t Eliminate the Need to Protect Patient Data
The federal government office responsible for HIPAA enforcement, Office of Civil Rights (OCR), lifted some HIPAA noncompliance penalties to encourage telehealth use during the COVID-19 crisis. But HIPAA has not been waived entirely, and practices must still comply with many of its elements.
OCR relaxed some HIPAA technology requirements, allowing the use of FaceTime and several other non-compliant platforms for telehealth. However, OCR has warned that public-facing platforms like TikTok and Facebook Live remain prohibited due to their inability to adequately protect patient privacy.
The goal of the expansion was to facilitate telehealth care for patients who lack access to HIPAA-compliant software — that is, to broaden patients’ access to care. The goal was not to make life easier for health care practitioners. If a patient can access a HIPAA-compliant system (like Zoom or Doxy.me), then practices should implement those platforms for telehealth visits. And regardless of the platform, practitioners must use secure internet connections that support HIPAA’s requirements — no unsecured or public Wi-Fi.
In general, practices should still comply with HIPAA as they normally would to avoid breaches that fall outside the scope of the current waivers or that violate state medical privacy laws.
Remember, HIPAA requires a risk assessment whenever there are any changes that affect protected health information (PHI). A dramatic change — such as adopting telehealth — should trigger a risk assessment to determine if the practice is more vulnerable to a privacy breach. Even in the absence of changes to PHI-impacting software or policies, practices must complete risk assessments at least annually. Each risk assessment should be tailored to the practice’s specific policies, procedures, and self-identified potential vulnerabilities.
Billing for Telehealth
In response to COVID-19, most private payers have modified the scope of allowable models of care. However, the modifications vary by state and payer. Furthermore, practices must determine if their insurance contracts allow billing for telehealth. If not, they risk a loss of reimbursement.
Many states require “insurance parity” for telehealth, which broadly means that if an insurance company covers a service when provided in-person, then it must cover the rendering of that same service by telehealth. But here’s where things can get confusing: sometimes the state’s insurance parity laws do not align with the states’ professional practice acts or other regulations.
For example, an insurer may reimburse for a non-video, telephone-only visit, while the provider’s practice act prohibits non-video telehealth visits. Similarly, perhaps the state’s telehealth laws omit non-video visits as a legally-permissible form of telehealth. In short, just because a service is covered by insurance doesn’t mean that it can be legally rendered in the state.
Finally, remember that the whirlwind of changes have not impacted whether telehealth-based physical therapy can be reimbursed if offered to Medicare or Medicaid beneficiaries — it remains an uncovered benefit per the Centers for Medicare and Medicaid Services (CMS).
Waivers of Licensure
Many physical therapists have also wondered how their practices may be impacted by a waiver of licensure that would allow them to practice across state lines. While there is a waiver, it has been extended at the federal level. Note that the states regulate most professional practices, and many states have not modified their laws or enacted similar waivers. Even states that have done so typically focus on narrow subsets of healthcare providers who could relieve front-line workers, such as anesthesiologists or critical care nurses. Physical therapists still need to be appropriately licensed, just as they did pre-COVID.
Misconceptions around telehealth and informed consent abound. Some physical therapists mistakenly believe that recording their sessions with patients establishes “proof” of informed consent. Others record their patients stating that they understand they are receiving physical therapy and provide their informed consent. Neither of these tactics is likely sufficient to demonstrate true informed consent.
Informed consent is a topic ripe for litigation, and many lawsuits have been filed by patients who later argue that they did not provide their informed consent to the treatment they received. Patients sometimes contend that despite written or verbal proof from the practitioner, they did not understand some aspect of the treatment. Had they understood, they would not have consented to it and thus not been injured. To avoid expensive litigation, practices should implement written telehealth informed consent forms that can be digitally completed and signed.
The informed consent documentation used in other aspects of the clinic is not adequate to document informed consent to telehealth. Instead, the situation demands forms that articulate the risks, benefits, and alternatives of receiving the proposed treatment through telehealth. A word of caution about forms located online or used by a friend: these are highly specific to one’s practice, patient population, and technology platforms. In addition, they need to reflect state laws and requirements.
State Telehealth Rules
Many states have responded rapidly to the COVID-19 crisis, and the rules have changed on a near-daily basis. Clinics must understand the laws of each state in which they offer care. Further, the interaction between new or emerging state telehealth laws with state physical therapy practice acts may be confusing or downright contradictory. With time, these issues will be ironed out by regulators. In the meantime, be aware that state law still governs much of the practice’s care, business activities, and ethical requirements.
In attempting to understand the interplay between state laws, federal laws, and private payors’ rules, many practitioners simply observe their peers. That can be a mistake. Never assume that any given conduct is legally permissible just because another practice is offering expansive telehealth services—even if it’s the largest practice in town.
It’s not easy for physical therapists to grapple with all of the legal changes, especially during a national emergency that has upended so many other aspects of life. In some ways, though, the fundamentals still apply when practicing telehealth: maintain high standards of care (and be honest about when you cannot), be diligent about privacy and security per HIPAA, know the details of your insurance contracts, practice within your licensure, and seek telehealth-specific informed consent. A healthcare lawyer in your state can guide you in any of these areas if you need support.
Erin Jackson is a healthcare attorney and Managing Partner of Jackson LLP, a client-centered health law firm that supports small- to mid-sized practices with HIPAA, Medicare, and corporate compliance. She has worked with dozens of physical therapy clinics to implement and establish comprehensive tele-PT options for continuity of patient care. Erin can be reached by email at Erin@JacksonLLP.com.
*The author has a professional affiliation with this subject.