Telemedicine Lawyers in Houston, TX

Counsel for Telehealth Compliance and Fraud Defense in Texas and Nationwide

COVID-19 accelerated the adoption of telemedicine in the United States and created new opportunities for providers across many specialties. In tandem with the rise in telehealth, however, came a slew of new rules, regulations, billing codes and requirements – all leading to greater risks and challenges.

If you are looking to enter the telehealth or telemedicine space – or actively engaged in providing telehealth services and are unsure of the latest requirements – work with experienced telemedicine lawyers to ensure compliance with the still-evolving regulations and to protect yourself against potentially ruinous enforcement actions.

Our Houston telemedicine attorneys guide physicians, medical practices, and other telehealth providers through regulatory compliance and represent them in fraud defense.

Call us at (713) 909-7323 to schedule a consultation today.

We Counsel Providers & Practices on Telehealth Compliance – With Proven Results

At Hendershot Cowart P.C., our health and medical law team is on the forefront of counseling practitioners, medical practices, and medical businesses in a range of telemedicine matters, including:

• Telemedicine practice set up, contracts, record-keeping, and prescribing / billing practices.
• Proactive compliance with state and federal telemedicine regulations, including telemedicine rules introduced during the COVID-19 public health emergency.
• Responsive intervention, risk-mitigation, and defense against telemedicine fraud investigations.

Backed by more than 100 years of collective experience, our award-winning attorneys serve providers throughout Houston, the state of Texas, and the U.S. To learn more about our telehealth legal services, call or contact us online.

What Are the Texas Telemedicine Laws?

In Texas, the primary requirements for telemedicine include:

1. Notices and Consents. Prior to any evaluation or treatment of the patient, the telemedicine provider must provide the patient with a notice of the provider’s privacy practices and a copy of the Texas Medical Board complaint notice. Additionally, the telemedicine provider must collect a signed consent form for the provision of telemedicine services.
2. Practitioner-Patient Relationship. The telemedicine provider must establish a valid practitioner-patient relationship. The telemedicine laws and regulations provide three approved avenues for establishing the required practitioner-patient relationship.
3. Prescriptions. The telemedicine provider may only prescribe medications within the parameters of the telemedicine laws and regulations.
4. Privacy and Security. The telemedicine platform and communications must comply with all applicable HIPAA Privacy and Security Rules.

How Do I Set Up and Structure a Telemedicine Practice in Texas?

Though telemedicine has become a necessary part of a thriving practice in recent years, implementation is a high-risk, complex endeavor. The challenges of telemedicine deployment stem from many barriers in setting up a compliant practice, including:

• Interstate Licensure: Telemedicine rules and regulations vary by state, which is why providers must ensure compliance with licensure, reimbursement, insurance, and other guidelines in the state where a patient receives care. Involving a legal team early in the process can help providers navigate federal, state, and payer requirements.
• Reimbursement: Practices must consider evolving telemedicine rules and reimbursement rates, as well as existing state and federal regulations, when devising reimbursement models and structuring compliant policies.
• Documentation and Record-Keeping: Documentation is critical to reimbursement, and practices must ensure clear records are maintained to comply with state or payer visit length requirements, coding and billing regulations, and more.
• Security and Privacy: Implementing telemedicine services requires practices to confront various concerns, including security and privacy rules, their own Intellectual Property, and compliance with various regulations, including HIPAA.
• Fraud and Abuse Penalties: Regulators have long scrutinized telemedicine and telehealth services for fraud and abuse, exposing those who deploy such services to greater risks of audits and health care fraud investigations that put considerable penalties on the table.

Hendershot Cowart P.C. has extensive experience guiding hospitals, practice groups, healthcare businesses, and providers through the development and deployment of telehealth and telemedicine services. This includes:

• Practice set-up, corporate formation, and governing documents
• Medical contracts, billing agreements, and contractual relationships
• Medical licensure, credentialing, and privileges
• Government and private payer reimbursement, including Medicare
• Privacy and security requirements, including HIPAA compliance
• Telemedicine technology outsourcing and licensing agreements
• Online prescribing, FDA compliance, and lab tests
• Retail / concierge medicine
• Intellectual property and trade secrets
• Texas’ prohibition against the Corporate Practice of Medicine
• Regulatory compliance, audits, and health care fraud investigations

Medicare’s Telehealth Guidelines

The Centers for Medicare & Medicaid Services (CMS) introduced a number of flexibilities and waivers to expedite the adoption and awareness of telehealth during the COVID-19 public health emergency (PHE). While the COVID-19 PHE expired on May 11, 2023, several of the telehealth flexibilities adopted during the PHE were extended through December 31, 2024. CMS has utilized the 2025 Physician Fee Schedule Final Rule as a mechanism to preserve some of the telehealth flexibilities that are otherwise scheduled for expiration.

Unless Congress steps in, most temporary Medicare telehealth changes are set to expire on December 31, 2024:

• Patient location. Through December 31, 2024, Medicare will reimburse telehealth visits originating from the patient’s home at the same rate as in-person visits, in all areas of the country. Starting January 1, 2025, beneficiaries will only be able to receive telehealth services from designated facilities in rural areas (they won’t be able to receive them in urban areas or from their homes). There are some exceptions, however: Certain Medicare telehealth services will remain available without requiring the patient to be located in a rural healthcare facility, such as services for diagnosis, evaluation, or treatment of symptoms of an acute stroke; services to treat a substance use disorder or a co-occurring mental health disorder; behavioral health services; among others.
• Types of eligible providers. Through December 31, 2024, all healthcare professionals are eligible to bill Medicare for their professional services furnished through telehealth. Starting January 1, 2025, physical therapists, occupational therapists, speech language pathologists and audiologists will no longer be eligible to bill Medicare for telehealth services. Physicians, physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, certified nurse-midwives, clinical social workers, clinical psychologists, registered dietitians, marriage and family therapists, and mental health counselors will remain eligible to bill Medicare for telehealth services.
• Types of telehealth services covered. CMS updated and simplified the Medicare Telehealth Services List to clarify which services will be reimbursed under the Medicare Physician Fee Schedule when furnished via telehealth through the end of 2024. In response to the Covid-19 public health emergency, many services were provisionally added to the Telehealth Services List. CMS has not yet determined whether to recategorize provisional codes into permanent codes, but has generally decided to maintain these services on the Medical Telehealth Services List on a provisional basis. CMS will later perform a comprehensive analysis of all provisional codes added during the public health emergency.
• Behavioral health. Starting on January 1, 2025, an in-person visit must be conducted within six months prior to the furnishing of telehealth services related to the evaluation, diagnosis, or treatment of mental health disorders. An in-person visit must be conducted annually thereafter in order to remain eligible for telehealth services. The in-person visit requirement will not apply to Federally Qualified Health Centers (FQHCs) or Rural Health Clinics (RHCs) until January 1, 2026.

Temporary HIPAA enforcement flexibilities related to telehealth technology expired with the end of the public health emergency. Covered healthcare providers must comply with the HIPAA rules for telehealth technology or face per-violation penalties effective August 9, 2023.

Permanent Medicare changes include:

• Medicare patients can receive telehealth services for behavioral/mental health care in their home
• There are no geographic restrictions for originating site for behavioral/mental telehealth services
• Behavioral/mental telehealth services can be delivered using audio-only communication platforms
• For services furnished after December 31, 2024, certain practitioners will be permitted to provide direct supervision of auxiliary personnel virtually for purposes of incident-to billing, where such supervision is provided through real-time, audio-video technology.

A Note About Telemedicine and Remote Prescribing

While electronic prescription technologies are being embraced by more providers as a means to reduce costs and errors, prescribing via telemedicine requires careful consideration of applicable regulations that can vary from state to state. In Texas, telehealth prescribers must abide by the same standards and requirements that would apply to in-person settings. The prescription of drugs must be therapeutically beneficial or necessary for the patient’s treatment.

Telemedicine service providers must also ensure compliance with various federal regulations, including the Haight Act, the SUPPORT for Patients and Communities Act of 2018, and the Controlled Substances Act (CSA). Under federal law, providers must conduct at least one in-person evaluation of the patient to prescribe and meet circumstantial requirements to qualify under the Controlled Substances Act’s “practice of telemedicine” exception.

Temporary DEA Flexibilities for the Prescription of Controlled Medications

On May 9, 2023, the Drug Enforcement Administration (DEA), along with the Substance Abuse and Mental Health Services Administration (SAMHSA), issued a temporary rule to allow the following:

• All telemedicine flexibilities regarding the prescribing of controlled medications in place during the COVID-19 PHE will remain in place through November 11, 2023*
• For any practitioner-patient telemedicine relationships that have been or will be established on or before November 11, 2023, all telemedicine flexibilities regarding prescription of controlled medications in place during the COVID-19 PHE will continue to be permitted through November 11, 2024*

*UPDATE: On November 19, 2024, the DEA, jointly with the Department of Health and Human Services (HHS), annouced the third temporary extension of COVID-19 telemedicine flexibilities for the prescription of controlled medications through December 31, 2024. The agencies will waive the in-person visit requirement prior to the prescribing of controlled substances virtually until December 31, 2025.   

This temporary rule is in place while the DEA considers public comments on its proposed rule for permanent telehealth flexibilities. 

Compliance Plan for Prescribing via Telemedicine 

Providers looking to deploy a telemedicine program to prescribe medications as well as those currently utilizing remote prescribing should address all applicable regulatory considerations as part of a comprehensive compliance plan. This includes not only protocols to ensure compliance under state and federal laws, but also policies and procedures tailored to the patients being treated, their physical locations, the types of provider participants, and other aspects specific to a practice.

Our team can help you create an effective compliance plan and protect yourself from allegations of fraud and abuse.

Telemedicine vs. Telehealth in Texas: What’s the Difference?

Texas has adopted robust telemedicine regulations to better serve its large rural population and address a shortage of health care providers in the state. For example, Texas has a solidified telehealth parity law that requires private insurance companies, state employee health plans, and Medicaid to cover telemedicine and telehealth services.

How does Texas law define “telehealth” and “telemedicine”? Though these terms are often used interchangeably, they have specific definitions under Texas law:

• Telemedicine services are health services provided by a licensed physician, or a health care professional acting under the delegation and supervision of a licensed physician, to a patient at a different physical location using telecommunications or information technology.
• Telehealth services are health services delivered by a health professional licensed or certified to practice in Texas and acting within the scope and limits of their license or certification to a patient at a different physical location using telecommunications or information technology.

By contrast, the Centers for Medicare & Medicaid Services (CMS) has adopted broader terminology and uses telehealth and telemedicine to generally refer to “the exchange of medical information from one site to another through electronic communication to improve a patient’s health.”

Hendershot Cowart P.C. stays up to date with state and federal laws surrounding both telehealth and telemedicine, by any definition. We seek to help providers with regulatory compliance and protect them from fraud allegations, helping both patients and providers benefit from the advantages of telemedicine and telehealth services.

Telemedicine Fraud Defense Attorneys

Telemedicine has long been a target for regulators on the lookout for waste, fraud, and abuse. The federal government has been especially focused on telemedicine services and violations involving medically unnecessary services, billing for services not rendered, durable medical equipment (DME), call centers, and failing to comply with the telemedicine laws and regulations (see above).

As such, providers and businesses engaged in telemedicine face significant exposure to audits, health care fraud investigations, and potentially devastating penalties over alleged violations of various fraud and abuse laws. These may include the Anti-Kickback Statute, Stark Law (physician self-referrals), and the False Claims Act (including whistleblower / qui tam cases).

Fraud accusations may include:

• Upcoding (billing for more expensive procedures than those performed)
• Unbundling (charging each stage of a procedure as a different procedure)
• Accepting kickbacks for patient referrals and using certain drugs and treatments
• Billing the patient and their insurance company for the same service
• Providing false or forged information or prescriptions

An action you might not think twice about in your in-person practice could lead to scrutiny in your telemedicine practice, especially when patients have federally funded insurance, need medications subject to the Drug Enforcement Administration (DEA), or call in from across state-lines.

At Hendershot Cowart P.C., our legal team helps clients mitigate liability exposure by developing comprehensive compliance plans proactively. We also provide immediate representation and early intervention counsel to minimize the impact of investigations and defend against various enforcement actions, such as OIG subpoenas and civil investigative demands.

Call Today to Speak to a Texas Telemedicine Attorney

Hendershot Cowart P.C. is intimately familiar with telemedicine and telehealth laws, as well as the tremendous amount of healthcare regulations with which providers, practice groups, and business owners must comply. During uncertain times, we know these challenges can be magnified.

Because significant opportunity does exist in telemedicine, we have cultivated the multi-disciplinary approach needed to counsel clients who want to enter the space, ensure compliance, and protect themselves against risks and regulatory enforcement actions.

If you have questions about our services or wish to speak with a Texas-based telehealth attorney, please contact us. We proudly serve health care clients across Texas and beyond.