August 8, 2020

Volume X, Number 221

August 07, 2020

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August 06, 2020

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Massachusetts Adopts Permanent Telehealth Policy for the First Time

Last Thursday, the Massachusetts Board of Registration in Medicine (BORIM) approved its first permanent telehealth policy. The Board’s policy provides that: (1) a “face-to-face encounter" is not a pre-requisite for a telehealth visit; and (2) the same standard of care applies to both in-person and telehealth encounters. The Board had previously approved this policy on an “interim” basis in response to the COVID-19 pandemic on March 16, 2020.

This policy is an important step for the Massachusetts BORIM as it had previously hesitated to provide any formal guidance on the practice of telehealth. The only Board policy that nominally touched on telehealth was a prescribing policy adopted in 1989 that addressed so-called “pill mills.” The Board updated the policy over time but never took into the account how telehealth has evolved over the last 30 years. The Board's new policy is the first time that the BORIM has issued a telehealth-specific policy and clarified the fundamental issue that a prior in-person examination is not required before a provider can render telehealth services.  It also reiterated the position taken by most state boards that the standard of care is the same whether the patient is seen in-person or through telemedicine.  

This permanent policy change by the Massachusetts BORIM is one of the first state actions we’ve seen to make permanent some of the temporary measures that have been put into place to facilitate the widespread use of telemedicine during the current pandemic.  At the federal level, key players are advocating for permanent changes that will ensure the continued expansion of telehealth access and reimbursement parity after the pandemic ends (see here and here). We will continue to report on these changes as they unfold

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume X, Number 183

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About this Author

Sarah Beth S. Kuyers, Mintz Levin, nonprofit affiliation lawyer, health care systems attorney
Associate

Sarah Beth’s practice involves a variety of regulatory, transactional, and enforcement defense matters for clinical laboratories, hospitals, pharmacies, insurers, and other health care clients.

Sarah Beth routinely advises clients on a wide variety of federal and state health care regulatory issues, including anti-kickback and self-referral laws, licensure and scope of practice rules, telemedicine, certificate of need applications, food and drug law, and HIPAA compliance. She also handles licensure and regulatory filings for clinical laboratories and other health care providers....

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Ellen L. Janos, Health care attorney, mintz levin law firm,Digital Health PBMs & Pharmacies Hospitals & Health Systems Post-Acute & Long-Term Care Retail & Urgent Care Physician Organizations
Member

Ellen utilizes her in-depth knowledge of health care regulation to assist clients with government audits and investigations, M&A and financing transactions, and corporate compliance activities. She also provides strategic advice to traditional health care providers, investors, and start-ups on telehealth initiatives as well as the traditional practice of medicine across multiple states. Ellen often comments on developments in telehealth, HIPAA, and the corporate practice of medicine. As an assistant attorney general for the Commonwealth of Massachusetts, Ellen represented state agencies responsible for health care reimbursement, licensing, and Medicaid fraud prosecutions. She has successfully argued two cases before the US Supreme Court.

Ellen specializes in providing regulatory and strategic advice to health care providers and payors of all types, including hospitals, managed care organizations, long-term care facilities, pharmacies, pharmaceutical and device manufacturers, telemedicine providers, and urgent care and retail health clinics. She also represents companies doing business with, and investing in, health care providers. One of Ellen’s provider clients was quoted saying, “I can bring her any issue or question and she is able to quickly provide insights and answers that are practical and business-oriented. She is a true health care expert.”

Ellen's practice focuses on Medicare, Medicaid, and third-party payor audits and investigations, the development of corporate compliance programs, and hospital/physician relationships, including compliance with the state and federal anti-kickback laws and the Stark Law. In addition, she advises clients on how to deploy telemedicine and internet based health initiatives, electronic health records, and how to address HIPAA privacy and security matters.

Before joining Mintz, Ellen was an assistant attorney general for the Commonwealth of Massachusetts, representing state agencies responsible for health care reimbursement, licensing, and Medicaid fraud prosecutions.

Ellen served as a member of the advisory committee that worked with the Massachusetts Health IT Council on the development and implementation of the statewide HIT strategic plan and health information exchange.

She has written about and speaks frequently on state and federal telehealth laws, the corporate practice of medicine, compliance programs, board governance matters, HIPAA privacy and data security, technology and health care, and hospital/physician relationships. Ellen has successfully argued two cases before the US Supreme Court.

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