The fast-spreading novel coronavirus is increasing the use of telemedicine across the country and in Texas. Telemedicine provides a way for patients to get medical advice without visiting a crowded doctor's office, and in the case of rural areas, without traveling long distances. In the wake of COVID-19, Texas, other states and the federal government have relaxed certain regulations, clearing the way for health care providers and patients to use telemedicine.

Here are two key changes made in Texas:

• Gov. Greg Abbott suspended certain requirements regarding the establishment of a doctor-patient relationship for a telemedicine visit. Now, a phone consultation is sufficient to create that relationship. Following the governor's action, the Texas Medical Board issued new relaxed guidance, which clarified that audio-only telephone calls would be sufficient to establish a physician-patient relationship for all purposes, and may be used for diagnosis, treatment and ordering of tests for any conditions (not just for issues or conditions related to the COVID 19).

• Abbott also directed the Texas Department of Insurance (TDI) to issue a new emergency telemedicine rule. That provision means physicians and other healthcare professionals in Texas must be paid by insurance plans regulated by the TDI for medical visits they conduct over the phone at the same rate they would receive for in-person visits.

These changes are significant, but they do not affect the standard of care for the practice of medicine in Texas. The Texas Medical Board's stated purpose in relaxing the telemedicine technology rules is that strict compliance at this time "could prevent, hinder, or delay timely delivery of necessary medical services in relation to efforts to cope with the declared disaster." Healthcare providers should keep this purpose in mind when determining whether any telephone-only visit is appropriate, sufficient, or necessary.

Telemedicine is also benefiting from an easing of rules at the federal level. Medicare now covers more aspects of telehealth services and makes reimbursement to providers easier:

• Medicare coverage has been expanded to enable beneficiaries to receive a wider range of telemedicine services. Before the coronavirus pandemic, Medicare reimbursement for telehealth was limited to services: (i) provided in rural communities; (ii) provided at designated sites; or (iii) at home in some limited circumstances, such as a patient on dialysis for end stage renal disease. Under the new emergency declaration waiver, a provider may temporarily seek reimbursement for telehealth visits provided to a patient in their home and other settings. The services that can be reimbursed include "office" visits, mental health counseling, and preventive health screenings. Initially Medicare said this could only be used with an existing patient, but the recently passed CARES Act removed this requirement so now physicians can see new patients via a telehealth visit.

• Medicare providers can bill immediately under this new and expanded coverage for dates of service on or after March 6, 2020. Medicare will reimburse telehealth services under the Physician Fee Schedule at the same amount as in-person services. Medicare coinsurance and deductibles still apply for telehealth services, however, the HHS Office of Inspector General (OIG) has also issued a policy statement indicating that providers may reduce or waive a beneficiary's coinsurance and deductible requirements for federal healthcare telehealth services furnished during the state of emergency (a period of up to 90 days, unless extended). This temporary flexibility does not modify any other applicable coverage or payment rules, or prohibitions on kickbacks and referrals.

• The Centers for Medicare and Medicaid Services has also attempted to make it easier for services across state lines. Specifically, it has temporarily waived requirements that out-of-state providers must be licensed in the state where the patient is located. Instead, if a provider is licensed in at least one state, the provider may be reimbursed for treatment of patients in another state via telemedicine, as long as the state where the patient lives has waived its licensing requirements and is allowing out-of-state doctors to practice telemedicine.

• Many states are following the federal government's lead on this issue and waiving certain licensing requirements involving telemedicine. Nevertheless, most of these states still require a provider to apply for some type of temporary or emergency license.

It is important to note that while CMS has tried to allow for nationwide coverage, each state still controls who can practice within its borders. As a result, all providers must continue to adhere to all applicable state laws and medical board regulations of telehealth. Therefore, before a provider sees patients in a state where they are not currently licensed, they should ensure they meet those state's specific licensing regulations and they understand the telehealth regulations specific to that state.

It is crucial for providers to keep in mind that HHS implemented these modifications to ensure reimbursement for providers who furnish covered items and services in good faith but are unable to comply with traditional requirements as a result of the COVID-19 pandemic. Noncompliance outside these conditions may result in a denial of reimbursement or even a finding of fraud or abuse.

These changes provide a significant (but temporary) expansion of access to care. The governmental response to COVID-19 remains ongoing, and subsequent changes may come into effect as this unprecedented public health crisis evolves.

Virginia Alverson Mimmack leads the Healthcare practice of Texas-based Jackson Walker LLP where she advises doctors, doctor-owned entities, hospitals and healthcare start-ups. She can be reached at [email protected].