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Volume XII, Number 335

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FQHCs: Proposed Guidance Addresses Health Center Delivery of Telehealth Services

The federal government is requesting comments on proposed guidance for federally qualified health centers (FQHCs) that provide services via telehealth. The guidance communicates key criteria for ensuring services delivered via telehealth remain within the health center’s Health Resources and Services Administration (HRSA)-approved scope of project, and therefore qualify for benefits such as Federal Tort Claims Act (FTCA) coverage, 340B discount drug pricing, and enhanced Medicare and Medicaid reimbursement.

The proposed guidance was issued for comment on September 15, 2022 by HRSA, the component of the U.S. Department of Health and Human Services (DHHS) that oversees health centers. The guidance applies to FQHCs that receive federal grants under the Public Health Service Act, as well as FQHC look-alikes that meet HRSA requirements but do not receive federal grants. Comments are due on or before November 14, 2022.

Existing Health Center Program Requirements Apply to Telehealth Services

The proposed guidance sets forth HRSA’s view that telehealth is a means for delivering health services to patients using telecommunications technology or equipment. Because telehealth is not considered a type of service, it does not need to be approved by an FQHC’s HRSA project officer and listed on the Form 5A. However, the proposed guidance emphasizes that all existing health center program requirements apply when services are delivered via telehealth.

Many of the requirements noted by the proposed guidance could be implemented through appropriate policies and procedures. For example, health centers using telehealth must delineate key roles and responsibilities for health center staff, such as the responsibility for obtaining informed consent from patients to receive services by telehealth, and the responsibility for informing patients of the ability to opt out of receiving services via telehealth. Health centers must also ensure they can bill and apply sliding fee discounts to patients receiving care via telehealth, and meet all relevant licensure and scope-of-practice rules. 

Regulatory Barriers Pose Challenges for Providing Telehealth Services to Geographically Distant Patients

The proposed guidance clarifies that FQHCs must ensure patients who receive services via telehealth have reasonable access to the health center’s full scope of services for the telehealthcare to fall within the HRSA-approved scope of the project. This requirement potentially increases complexities for FQHCs interested in delivering services in geographic areas where they do not have a physical presence.

Exacerbating this issue is the rule outlined in the proposed guidance that telehealth services will be considered within an FQHC’s scope of the project only when delivered to patients who either have previously presented for care at a health center site or satisfy a detailed set of criteria, including a requirement to be physically located within the health center’s service area. This restriction sharply limits the ability of an FQHC to deliver in-scope services to a geographically distant patient—even if the FQHC has special expertise in providing care for the particular patient’s health condition or community.

FQHCs May Contract for Telehealth Services

The proposed guidance does not expressly address contracting for telehealth services, leaving HRSA’s ordinary guidance on FQHC contracting undisturbed.  Partnering with a local health center may offer one viable alternative for a geographically distant FQHC to leverage its specialized expertise to reach new patients via technology without losing the benefits of FQHC status.

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 276
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About this Author

Adam Hepworth,  Health Care Attorney, Foley Law Firm
Associate

Adam J. Hepworth is an associate and health care business lawyer with Foley & Lardner LLP. He is a member of the firm’s Health Care Industry Team.

Prior to joining Foley, Mr. Hepworth was a law clerk for Judge Harris L. Hartz on the United States Court of Appeals for the Tenth Circuit. He also interned in the San Francisco City Attorney’s health group and externed in the Civil Division of the United States Attorney’s Office in San Jose. Before he attended law school he was a policy intern for Sierra Health Foundation, where he worked on...

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