In June 2022, the U.S. Department of Health and Human Services (HHS) issued new guidance on the use of remote communication technologies to deliver audio-only telemedicine in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). However, do not let this new guidance mislead you into thinking that audio-only telemedicine is legal across the board.
HIPAA regulations and guidance do not pre-empt state laws or regulations that define the standards for telemedicine in Texas.
What Is HIPAA’s Most Recent Guidance on HIPAA and Telemedicine?
HHS announced on June 13, 2022, that physicians and healthcare providers can use remote communications to provide audio-only telemedicine services when conducted in a manner consistent with HIPAA.
Audio-only telemedicine expands access to healthcare among certain populations that may have difficulty accessing video telemedicine due to financial resources, limited English proficiency, disability, lack of internet access, insufficient broadband, or spotty cell coverage in the geographic area.
This new guidance is intended to encourage providers to offer audio-only telemedicine technology while also protecting patients’ privacy.
This latest guidance addresses questions that HHS has received about whether, and in what circumstances, audio-only telemedicine is permissible under the HIPAA Rules.
According to the official guidance:
- HIPAA-covered entities can use remote communication technologies to provide telemedicine services, including audio-only services, in compliance with the HIPAA Privacy Rule.
- The HIPAA Security Rule only applies to protected health information (PHI) transmitted by, or maintained in, electronic media. As a result, traditional landline phone calls are not covered by this rule. However, traditional landlines are rapidly being replaced by Voice over Internet Protocol (VoIP), mobile device apps, and other electronic communications media. Providers should keep an accurate inventory of the services and assets used to transmit PHI. (Note: An individual receiving telemedicine services may use any telephone system they choose and is not bound by HIPAA Rules.)
- Covered healthcare providers can use telemedicine technology without a business associate agreement (BAA) in place with the vendor in some circumstances. For example, a covered healthcare provider may conduct an audio-only telemedicine session with a patient using a smartphone without a BAA between the covered healthcare provider and the telecom service provider. This is because the service provider is merely transmitting the call and its data, and not storing, receiving, or accessing PHI.
- Covered healthcare providers may use remote communication technology regardless of whether the patient’s health plan provides coverage or payment for those services.
This guidance does not pre-empt state-specific regulations regarding patient privacy and telemedicine.
Does Texas Allow Audio-Only Telemedicine Services?
Many of the Texas laws governing telemedicine stem from establishing a valid practitioner-patient relationship as a pre-condition to a pharmacist dispensing a prescription.
There are three general situations in which telemedicine services are provided:
- When the practitioner has a preexisting practitioner-patient with the patient;
- When the practitioner communicates with the patient pursuant to a call coverage agreement; and
- When the practitioner communicates with a new patient.
In all three instances, the practitioner providing the healthcare service or procedure as a telemedicine service is subject to the standard of care that would apply to the provision of the same healthcare service or procedure in an in-person setting.
When providing a telemedicine service to new patients, a valid practitioner-patient relationship will be deemed to be present under the following conditions:
- The practitioner must comply with the follow-up requirements in Section 111.005 Subsection (b) of the Texas Occupations Code;
- The method of communication allows the practitioner to have access to, and the practitioner uses, the relevant clinical information that would be required in accordance with an in-person setting standard of care; and
- The practitioner provides the telemedicine service through one of the following methods:
- Synchronous audiovisual interaction between the practitioner and the patient in another location;
- Asynchronous store and forward technology, including asynchronous store and forward technology in conjunction with synchronous audio interaction between the practitioner and the patient in another location, as long as the practitioner uses clinical information from:
- clinically relevant photographic or video images, including diagnostic images; or
- the patient's relevant clinical records, such as the relevant medical or dental history, laboratory and pathology results, and prescriptive histories; or
- Another form of audiovisual telecommunication technology that allows the practitioner to comply with the same standard of care as an in-person setting.
Texas healthcare providers generally may not diagnose, treat, order tests, or prescribe via telephone (audio-only) for their patients.
When establishing a new practitioner-patient relationship, telephone-only telemedicine services are allowed only when used in conjunction with clinical information provided via store and forward technology, such as email or another HIPAA-compliant technology platform or application. For existing patients, the practitioner must still comply with the standard of care, which almost certainly includes a review of relevant clinical records.
Didn’t Texas Telemedicine Rules Change During COVID-19?
While Texas’ disaster declaration related to the COVID-19 pandemic was effective, Governor Abbott approved the Texas Medical Board’s request to temporarily allow the use of telephone-only encounters to establish a physician-patient relationship. This expanded use of telemedicine was available for diagnosis, treatment, ordering of tests, and prescribing for all conditions.
This disaster declaration expired on June 15, 2023. As a result, physicians can no longer establish a physician-patient relationship via telephone only (audio-only) for their patients in Texas.
What Are Texas’ Telemedicine Requirements?
In addition to a valid practitioner-patient relationship, Texas’ telemedicine law (Texas Occupations Code, Chapter 111) also provides that “[a] health professional providing a healthcare service or procedure as a telemedicine medical service … is subject to the standard of care that would apply to the provision of the same healthcare service or procedure in an in-person setting.”
Therefore, if a physician cannot uphold the same level of care as an in-person visit, telemedicine services should not be used.
Texas also requires healthcare providers providing telemedicine services to:
- Obtain informed consent: Patients must consent to the provision of telemedicine services before services are provided. This is the same standard of care that applies to in-person visits. Patients can give informed consent through signed paperwork or verbal consent at the beginning of each telemedicine session.
- Maintain confidentiality: Adequate measures must be implemented to ensure that patient communications, recordings, and other records are protected consistent with federal law (HIPAA) as well as Texas Occupations Code, Chapter 159.
- Prevention of Fraud and Abuse. Physicians engaged in telemedicine must adopt protocols to prevent fraud and abuse through the use of telemedicine services.
- Comply with Texas Medical Board rules: The Texas Medical Board is authorized by Texas law to adopt rules necessary to ensure patients using telemedicine services receive appropriate, quality care; prevent fraud and abuse; and ensure adequate supervision.
Protect Your Texas Telemedicine Practice, Your Patients, and Their Privacy
If you are a healthcare provider offering telemedicine services, contact Hendershot Cowart P.C. for legal counsel on telemedicine compliance. Our healthcare attorneys are intimately familiar with state and federal privacy laws and guidelines and have extensive experience advising clients on telemedicine compliance and other health law matters.
Contact Hendershot Cowart P.C. for more information.
