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COVID-19: Frequently Asked Questions

[Updated 04/04/20] Below are some of the most frequently asked questions the California Medical Association (CMA) has received from physicians during the COVID-19 outbreak. We will update this resource regularly. You can also view the American Medical Association’s FAQ here.

Have more questions? Email them to communications@cmadocs.org.

Questions by Topic

Within each topic, questions are sorted by date with the most recent answers first. As new questions are added, they will appear at the top of each section.

 

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Personnel

What if I temporarily close my practice because of COVID-19? What are my obligations to current patients?

(Updated 3/26/20)

Physicians who choose to temporarily close their practices should keep in mind their ethical and legal obligation not to abandon their patients. While no specific statute defines patient abandonment, it is considered unprofessional conduct by the Medical Board. Courts interpreting the parameters of the obligation have upheld patient abandonment claims where: 1) patient prove that a physician-patient relationship exists; 2) the patient held a reasonable expectation that care would be provided; 3) that the physician failed to carry out their obligation and; 4) that the patient was harmed as the result of the physician not providing care to the patient.  

Accordingly, physicians considering closing their practice temporarily will need to notify existing patients of the closure and communicate with patients, in particular those patients who may have an immediate care need, with regard to how they can access alternative care. In general, simply directing patients to the emergency room is not recognized as sufficient coverage for patients, particularly in light of potential exposure to COVID-19.  Practices will also need to inform patients of how they can access their medical records in the event the office is closed. 

For additional information that about these obligations, see CMA health law library document #3503, "Termination of the Physician-Patient Relationship." CMA's health law libary is free to members. Nonmembers can access documents for $2 per page.

For specific advice about to best communicate with and provide coverage for the patients in their particular practice, physicians should contact their professional liability carrier or personal attorney. (03/26/20)

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What are the implications for employers and employees of the Families First Coronavirus Response Act?

(Updated 3/25/20)

The Families First Coronavirus Response Act (the Act) was signed into law on March 18. This legislation seeks to assist employees affected by the COVID-19 pandemic. The intent of this guidance is to summarize the key benefit provisions that apply to employers, most notably the temporary expansion of the Family and Medical Leave Act (FMLA) and emergency paid sick leave (EPSL) to employers and employees not previously covered. These provisions will become effective on April 2, and remain in effect until December 31, 2020.

The Family and Medical Leave Act

The Act expands the FMLA in several key aspects. First, it extends coverage to all employers with fewer than 500 employees, requiring them to provide 12 weeks of emergency family leave to an employee who experiences a “qualifying need.” There is only one “qualifying need” for emergency family leave under the Act:

  • To care for a child under the age of 18 whose school is closed or whose childcare provider is unavailable to due COVID-19.

The Act further defines “childcare provider” as a provider who receives compensation in exchange for childcare services.

Second, to be eligible for emergency family leave, an employee must be employed for at least 30 calendar days (before the first day of leave). Thus, the Act significantly expands eligibility under current federal law, which requires an employee to have worked 12 months and at least 1,250 hours in the prior year.

Importantly, the Act contains a provision that allows employers of healthcare workers and/or emergency responders to elect not to provide emergency leave to those employees under the Act. The Act also allows the Secretary of Labor to exclude healthcare workers and emergency providers from the category of employees who are eligible to take emergency family leave, and to exempt businesses with less than 50 employees from the emergency family leave requirements, when the imposition of such requirements would jeopardize the viability of the business.

Under the Act, the first 10 days of emergency family leave may be unpaid. During this time, an employee may elect to substitute any paid leave they have accrued (such as sick leave or vacation) to cover some or all of the unpaid period. From the 11th day onward, the employer generally must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled, subject to a cap of $200 per day and $10,000 in the aggregate per employee.

Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked during a six-month lookback period from the first date of leave. If an eligible employee has not been employed for six months, they are entitled to the employer’s reasonable expectation (at hiring) of the average number of hours the employee would normally be scheduled to work.

Employees generally have a right to be reinstated to their same position they had before their emergency family leave began. If that position is no longer available, the employee may be reinstated at a comparable position. The Act contains a limited exemption for businesses with less than 25 employees but requires the employer to make reasonable attempts to return the employee to an equivalent position for up to a year following the employee’s leave.

Emergency Paid Sick Leave Act

This portion of the Act allows an employee to take paid sick leave when the employee is unable to work (including telework) because they are:

  1. Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. Advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. Experiencing COVID-19 symptoms and are seeking a medical diagnosis;
  4. Caring for an individual who:
    • is subject to an order described in 1 above; or
    • was advised by a health care provider to self-quarantine as described in 2 above;
  5. Caring for their child under age 18 whose school or childcare provider has been closed or is unavailable due to COVID-19; and
  6. Experiencing any substantially similar condition specified by the Department of Health & Human Services in consultation with the Department of the Treasury and the Department of Labor.

Under this provision, employers with fewer than 500 employees are required to provide full-time employees with 80 hours of emergency paid sick leave (EPSL) at the employee’s regular rate (or two-thirds of the employee’s regular rate under qualifying events 4, 5, or 6 listed above). Part-time employees are entitled to a number of hours equal to the number of hours that such employee works, on average, over a 2-week period. All employees are eligible for EPSL regardless of their duration of employment prior to taking leave.

Like the FMLA provision, this section authorizes employers of healthcare providers or emergency responders to exempt such employees at their election. It further authorizes the Secretary of Labor to exclude healthcare workers and emergency providers from the category of eligible employees, and to exempt businesses with less than 50 employees from the EPSL requirements.

Calculation of pay for EPSL depends on the qualifying event. If an employee takes EPSL for qualifying events 1-3, they must be paid their regular compensation, capped at $511 per day up to $5,110 total per employee. For EPSL taken pursuant to qualifying events 4-6, employees must be paid the greater of two-thirds their regular compensation, or the minimum wage, capped at $200 per day up to $2,000 total per employee.

Finally, EPSL must be granted in addition to any pre-existing paid leave benefits, and an employer cannot require that any employee first exhaust other paid leave benefits before taking EPSL. EPSL does not carry over from one year to the next.

Tax Credits for Paid Sick and Paid Family and Medical Leave

Employers who are required to provide the emergency paid family leave and EPSL described above are entitled to quarterly refundable tax credits, allowed against the employers’ portion of Social Security taxes. In effect, this means that an employer would receive a tax credit if the costs of providing qualified emergency family or sick leave exceeds the taxes they would owe.

For emergency paid family leave, the credit is capped at $200 per day and $10,000 total. For EPSL, the credit is capped at $511 per day, up to 10 days, if an employee takes leave under qualifying events 1-3 (listed above) or $200 per day, up to 10 days, if the employee takes leave under qualifying events 4-6.

Notice Requirement

Each employer must post a notice of the FFCRA leave requirements in a conspicuous place on the employer’s premises. An employer may satisfy this requirement by emailing or direct mailing the notice to employees or posting the notice on an employee information internal or external website. Given the current stay-at-home orders, CMA recommends that employers email the notice to all employees who are working remotely. The Department of Labor has posted a model notice on its website.

Pending Legislation

CMA is closely tracking the pending $2 trillion federal stimulus bill, and its provisions on expanded unemployment insurance coverage and small emergency loans for small businesses. We will provide guidance on those provisions once a final version of the bill is signed into law.

Source:
https://www.congress.gov/bill/116th-congress/house-bill/6201/text
https://www.dol.gov/agencies/whd/pandemic
https://boutinjones.com/wp-content/uploads/2020/03/Families_First_Coronavirus_Response_Act.pdf

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What impact does the governor's EO have on an employer’s ability to close an establishment because of COVID-19?

(Updated 3/25/20)

On March 17, Governor Newsom issued Executive Order N-31-20, which temporarily suspends the 60-day notice requirement in the California WARN Act (Cal/WARN) for employers to give written notice to employees of a mass layoff or closure of an establishment. The suspension was intended to permit employers to act quickly in order to mitigate or prevent the spread of COVID-19.
Notably, the Executive Order does not suspend Cal/WARN in its entirety, nor does it suspend Cal/WARN for all covered employers. Rather, it suspends Cal/WARN’s 60-day notice requirement for those employers that satisfy the Order’s specific conditions, and now requires those employers to provide notice as soon as practicable. The Labor Commissioner’s Office has provided further guidance on the conditional suspension of the Cal/WARN notice requirements on its website (link below).

Source: https://www.dir.ca.gov/dlse/WARN-FAQs.html

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Should practices disclose to the local health authority the identities of their employees who have tested positive for COVID-19?

(Updated 3/25/20)

Physician employers should disclose the identities of staff they know who have tested positive for COVID-19 to the local health authority. Health & Safety Code § 120250 broadly requires physicians to report the name and location of a person with any infectious, contagious, or communicable disease to the local health authority, along with the nature of the disease. COVID-19 is listed as a reportable disease under the highest risk category under applicable state law, and therefore must be reported immediately by telephone in each instance.

Physicians should not disclose the identities of any staff known to have tested positive for COVID-19 to the general public. The CMIA and HIPAA contain explicit exceptions for disclosures required by law, including for the purposes of containing communicable diseases. However, no California or federal law requires or permits a disclosure of an individual's health information to the public at large.

Related to this issue, the CDC has advised that if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (e.g., not disclosing the name of the infected employee(s) to coworkers).

Sources:
Health & Safety Code § 120250
https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

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How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?

(Updated 3/25/20)

During a pandemic, employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. An employer may also ask an employee who has exhibited symptoms of COVID-19 whether that employee has been tested for the disease, and the results of the test. Employers must maintain all information about employee illness as a confidential medical record in compliance with the Americans with Disabilities Act.

Source:
https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
https://www.eeoc.gov/facts/pandemic_flu.html

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Who is eligible for Unemployment Insurance during the COVID-19 pandemic?

(Updated 3/25/20)

The California Employment Development Department (EDD) has provided guidance on Unemployment Insurance benefits for employees affected by COVID-19:

Employees are encouraged to apply for Unemployment Insurance (UI) benefits if they are unemployed, which includes, but is not limited to, the following circumstances:

  • Employees who experienced reduced work hours due to the quarantine.
  • Employees who were separated (e.g., terminated, laid off, place of employment shut down, etc.) from their employer during the quarantine.
  • Employees who are subject to a quarantine required by a medical professional or state or local health officer.

Employees are eligible for benefits if they have enough earnings over the past 12-18 months and meet other eligibility criteria. Pursuant to the Governor’s March 12 Executive Order, the state has removed the one-week waiting period for unemployment and disability insurance for Californians who lose work as a result of the COVID-19 outbreak. The EDD will processes and issues payments within a few weeks of receiving a claim.

Self-employed individuals, and individuals whose availability to work is restricted due to childcare issues may also be eligible for UI benefits, as determined by the EDD on a case-by-case basis.

More information on UI benefits and the application process can be found on the EDD’s COVID-19 FAQs webpage.

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Does the self-isolation for those over 65 apply to health care workers?

(Updated 03/21/20)

The California Department of Public Health (CDPH) has stated that the guidance on self-isolation does not apply to hospital and health care workers over the age of 65.

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Can an employee refuse to come to work because of fear of infection?

(Updated 03/21/20)

Health care workers, to include those over the age of 65, are exempt from self-isolation and shelter-in-place requirements. Thus, a health care worker who refuses to come to work because of fear of infection would not be able to rely solely on those requirements as justification for their absence.

Generally, employees can refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSHA) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA further clarifies “imminent danger” to exist in situations where “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

Cal/OSHA also provides protection to employees who refuse to work under hazardous conditions. Generally, it is illegal for an employer to retaliate against an employee who refuses to perform hazardous duties, if performing the work would violate a Cal/OSHA health or safety regulation, and the violation would create a “real and apparent hazard.”

While neither OSHA nor Cal/OSHA have addressed the existence of “imminent danger” or hazardous duties as they pertain to health care workers’ exposure to COVID-19, OSHA has classified health care workers and support staff as having “very high” to “high” exposure risk to the disease. Thus, an employer’s failure to implement safety control measures, or abide by state and federal standards designed to protect health care workers against transmission of infectious agents (such as failure to provide appropriate PPE), may create a situation that rises to the threshold of an “imminent danger” or “real and apparent hazard.” Because the duties of most health care workers necessarily involve potential exposure to COVID-19, employers should strive to ensure that they adhere to all workplace health and safety regulations and address the concerns of individual employees.

It should be noted that this guidance is general, and employers must continually review the facts and circumstances in their workplace before determining whether it is permissible for employees to refuse to work.

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How should I handle temporary staff lay-offs or furloughs for employees?

(Updated 03/21/20)

The California Employment Development Department (EDD) has provided guidance and support services for employers and employees affected by COVID-19 (see their FAQs):

Reduced Work Hours
Employers experiencing a slowdown in their practices as a result of the COVID-19 impact on the economy may apply for the Unemployment Insurance (UI) Work Sharing Program. This Program allows employers to seek an alternative to layoffs — retaining their trained employees by reducing their hours and wages that can be partially offset with UI benefits. Workers of employers who are approved to participate in the Work Sharing Program receive the percentage of their weekly UI benefit amount based on the percentage of hours and wages reduced, not to exceed 60 percent.

Employers interested in utilizing the Work Sharing Program can visit the EDD’s website (link below) to learn more about its benefits for employers and employees, and how to apply.

Temporary Staff Layoffs
Workers can file for unemployment insurance benefits as long as they are unemployed and otherwise eligible. Workers who expect to return to work for an employer within a few weeks are not required to actively seek work each week if they are able and available to return to work during their unemployment and meet all other eligibility criteria.

Additionally, pursuant to Governor Newsom’s Executive Order (March 12), the state has removed the one-week waiting period for unemployment and disability insurance for Californians who lose work as a result of the COVID-19 outbreak.

Potential Closures or Layoffs
Employers planning a closure or major layoffs as a result of COVID-19 can get help through the EDD’s Rapid Response program. Rapid Response teams will meet with employers to discuss specific needs, help avert potential layoffs, and provide immediate on-site services to assist workers facing job losses. Services can include upgrades to current workers' skills, customized training, career counseling, job search assistance, help with filing unemployment insurance claims, and information about education and training opportunities. (03/21/20)

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How should I handle reimbursement of reasonable business expenditures (use of cell phone, internet, etc.) while staff is working remotely?

(Updated 03/21/20)

California Labor Code section 2802 requires employers to reimburse employees for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.” An employee’s use of a personal cell phone and internet directly related to their employment fall under this provision. Thus, employers should reimburse their employees for a reasonable percentage of their cell phone and internet service bills for work-related expenses or provide a reasonable flat rate for those expenses. (03/21/20)

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How should I handle hourly (non-exempt) staff working from home during this time?

(Updated 03/21/20)

Non-exempt employees generally are entitled to compensation for actual time worked when not in the office.  A signed policy indicating the types of activities that require supervisor approval and the company’s expectation for recording any time spent on such activities is something employers should seriously consider. Employers should also consult applicable company policies, employment contracts and collective bargaining agreements for potential contractual obligations to pay an employee during periods where the employee does not report to work.

Generally, if an employee reports for their regularly scheduled shift but is required to work fewer hours or is sent home, the employee must be compensated for at least two hours, or no more than four hours, of reporting time pay.

For example, a worker who reports to work for an eight-hour shift and only works for one hour must receive four hours of pay, one for the hour worked and three as reporting time pay so that the worker receives pay for at least half of the expected eight-hour shift. (03/21/20)

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Can I require a worker who is quarantined to exhaust paid sick leave?

(Updated 03/21/20)

Pursuant to state law, an employer cannot require that the worker use paid sick leave. The employee has the right to decide whether to use paid sick leave. However, if the employee decides to use paid sick leave, the employer can require they take a minimum of two hours of paid sick leave. The determination of how much paid sick leave will be used is up to the employee. (03/21/20)

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Can I ask staff to leave the office to self-quarantine if you suspect them to be sick?

(Updated 03/21/20)

The Centers for Disease Control & Prevention (CDC) states that employees who become ill with symptoms of COVID-19 should leave the workplace. The Americans with Disabilities Act (ADA) does not prohibit employers from asking staff to leave the workplace to self-quarantine when based on the CDC’s guidance. (03/21/20)

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Which workers are exempt from Governor Gavin Newsom’s statewide shelter in place order?

(Updated 03/20/20)

Physicians, nurses and other health care workers are “considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof,” according the guidelines set out by the U.S. Department of Homeland Security (DHS). Learn more here. (03/20/20)

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What is being done to address barriers facing physicians, as well as ensure hospitals and facilities stay within their capacity?

(Updated 03/19/20)

CMA and California Ambulatory Surgery Association (CASA) are urging physicians to suspend non-urgent and non-essential surgeries to give hospitals the additional capacity to deal with an expected surge in COVID-19 cases. CASA and CMA are working to take inventory of ventilation equipment in these facilities that may be able to be redeployed to hospitals and other facilities dealing with COVID-19 patients. The two medical provider groups are also asking centers to offer an inventory of their personal protection equipment like masks and gloves that may also be redeployed in the short term. (03/19/20)

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Financial

Are there any extensions or exceptions for Medicare quality reporting programs?

(Updated 3/23/20)

in an effort to cut down on the administrative burden that physicians are facing amidst the COVID-19 pandemic, the Centers for Medicare and Medicaid Services (CMS) announced it would be extending deadlines and granting exceptions from reporting requirements for clinicians and providers participating in Medicare quality reporting programs. The full list of exemptions and extensions can be found here. (03/23/20)

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How is CMA advocating at the federal level to help maintain practice viability?

(Updated 3/21/20)

CMA urged Congress to consider additional issues to protect the viability of physician practices as they struggle to meet the needs of their patients and staff during this unprecedented public health emergency. Read the full letter here. (03/21/20)

See also:

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Do volunteer physicians have any protection from liability for providing care during a state of emergency? What about physicians practicing outside their usual specialty?

(Updated 3/21/20)

Generally, yes. California and federal law currently provide a broad base of liability protection for physicians and other health care providers during a state of emergency. Under California law, physicians are generally immune from liability for injuries stemming from medical care and treatment rendered during a state of emergency. This immunity applies both to California-licensed physicians and physicians licensed in another state as well as to certain other health providers, including respiratory care practitioners and nurses. Note that this immunity does not apply in the event of a willful act or omission. (Government Code §8659; see also Business & Professions Code §900(e).) The U.S. Department of Health and Human Services (HHS) also issued a declaration which provides immunity from suit and liability under state and federal law for certain actions in relation to COVID-19. While these laws provide broad immunity for health care providers during a state of emergency, each situation would need to be analyzed based on facts specific to a particular provider. (03/21/20)

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Does practice insurance cover loss of practice revenue and paying staff during state or national declared emergency?

(Updated 3/21/20)

It might. There are many different insurance products, policies, and ways to customize insurance standard policies with insurance “riders.” Accordingly, practices will need to review their individual policy to determine whether it covers lost revenue or staff wages during state or national declared emergencies and call their insurance broker to discuss their specific insurance policy terms and the exclusions that apply. (03/21/20)

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What types of financial assistance are available to physicians during COVID-19?

(Updated 3/20/20)

State Level:

  • The Governor's Office of Business and Economic Development (GO-Biz) has compiled a list of assistance programs, including resource lists and loans. Connect with GO-Biz through this portal or calling their service line: (877) 345-4633 
  • The State Treasurers office has created a resource database, updated regularly

Federal Level:

Many cities, counties and community banks are offering assistance so we encourage members to research what your locality may be offering. (03/20/20)

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How will my practice be reimbursed for telehealth patient care?

(Updated 3/20/20)

Health insurance plans are required to reimburse providers at the same rate for telehealth services as they would for services provided in person. If the service is one that would otherwise have been provided in-person but is now being provided via telehealth, the plans should reimburse for that service as if it were provided in person. Practices must ensure that their documentation matches the requirements of the CPT code they are billing and appropriate use of the place of service code, 02, telehealth. (03/20/20)

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Are Medicare revalidations still required?

(Updated 3/18/20)

CMS has temporarily suspended provider revalidations. Until further notice, no providers will be deactivated or have their payments pended for not responding to a previously sent revalidation request. Noridian – California’s Medicare contractor – provides more details here. (03/18/20)

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Telehealth

Did the Federal government waive its enforcement of HIPAA for telehealth services?

(Updated 04/04/20)

Yes, the U.S. Department of Health and Human Service Office for Civil Rights (OCR) announced it will waive HIPAA penalties for good faith use of audio or video communication technology to provide telehealth to patients during the COVID-19 public health emergency. The intent of this approach is to allow health care providers to use popular applications that allow for remote communication that might not be secure, including Apple FaceTime, Zoom, Facebook Messenger video chat, Google Hangouts video, or Skype, to provide health care services without risk of penalty for noncompliance. Physicians are encouraged to notify patients that these third-party applications potentially introduce privacy risks and record in the medical record the patient's consent to use these technologies. Physicians should enable all available encryption and privacy modes when using such applications. Under this waiver, however, Facebook Live, Twitch, TikTok, and similar video communication applications that are public facing should not be used in the provision of telehealth. (Click here for more information regarding the HIPAA waiver.)

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Does the HIPAA waiver apply to all health care services or only to COVID-19 related services?

(Updated 04/04/20)

The waiver applies to telehealth provided for any reason, regardless of whether the telehealth service is related to the diagnosis and treatment of health conditions related to COVID-19.  For example, physicians in the exercise of their professional judgement may request to examine a patient exhibiting COVID- 19 symptoms, using a video chat application connecting the provider’s or patient’s phone or desktop computer to assess a greater number of patients while limiting the risk of infection of other persons who would be exposed from an in-person consultation.  Likewise, a physicians may provide similar telehealth services in the exercise of their professional judgment to assess or treat any other medical condition, even if not related to COVID-19, such as a sprained ankle, specialty consultation or psychological evaluation, or other conditions. 

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Have California privacy laws been waived to facilitate delivery of telehealth services?

(Updated 04/04/20)

Penalties pursuant to many California laws have been suspended to accommodate greater use of telehealth consistent with the HIPAA waivers (described above), though the laws themselves remain in place. The California Department of Public Health waived nearly all licensing requirements under Division 2, Chapter 2 of the Health and Safety Code (which includes sections 1280.15 and 1280.18) until June 30, 2020, which may be extended as needed. Subsequently, in an Executive Order on April 3, 2020, the Governor suspended: administrative fines, civil penalties, and private rights of action under the California Medical Information Act (CMIA) contained in Civil Code sections 56.35 and 56.36 for disclosures made during the good faith provisions of telehealth services; civil penalties contained in Civil Code sections 1798.29 and 1798.82 and related causes of action related to the timely notification to patients of security breaches that occur during the good faith provision of telehealth services; administrative penalties contained in Health and Safety Code sections 1280.15 and 1280.17 and related causes of action related to the unauthorized access or disclosures that occur during the good faith provision of telehealth services; and criminal penalties contained in Welfare and Institutions Code section 14100.2(h) and related causes of action related to the release of information regarding Medi-Cal beneficiaries during the good faith provision of telehealth services.

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What California privacy laws are relevant for physicians providing telehealth services?

(Updated 04/04/20)

The California Medical Information Act (CMIA) and other privacy laws remain in effect, though certain penalties and the ability to pursue private causes of action were suspended in the Governor's April 3 Executive Order. Health & Safety code section 1280.15 and 1280.18, Civil Code 1798.82, and the CMIA each obligate health care providers to prevent unlawful or unauthorized access to and disclosure of patients' medical information and safeguard patients' medical information – penalties for failure to do during the good faith provision of telehealth services were suspended in the Governor's April 3 Executive Order. Health care providers must still comply with notification requirements in Health and Safety Code section 1280.18, but the time period for such notifications was extended from 15 days to 60 days. No penalties have been suspended for the provision of any services that are not telehealth.

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Are patients required to consent to telehealth services under California law?

(Updated 04/04/20)

In his April 3 Executive Order, the Governor suspended the requirements contained in Business and Professions Code section 2290.5 to obtain and document a patient's verbal or written consent to telehealth services.

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What do I have to do if I discover a breach or suspected breach of patient data?

(Updated 04/04/20)

In his April 3 Executive Order, the Governor suspended penalties and causes of action contained in Civil Code 1798.82 with regard to inadvertent, unauthorized access or disclosure that occurs during the good faith provision of telehealth services and extended deadlines for notifications pursuant to Health and Safety Code section 1280.15, which now must be made within 60 days (extended from 15 days). No suspensions have been issued with regard to breaches or suspected breaches of patient data not related to the good faith provision of telehealth services.

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Can I prescribe buprenorphine for opioid use disorder without an in person evaluation?

(Updated 04/01/20)

Physicians managing patients with opioid use disorder can now prescribe buprenorphine to new or existing patients based on telephone visit as the COVID-19 pandemic continues, thanks to new flexibility announced on Tuesday by the U.S. Drug Enforcement Administration (DEA).

The new guidance allows physicians and other health care providers who have a waiver to prescribe buprenorphine for the treatment of opioid use disorder to issue these prescriptions to new and existing patients based on an evaluation via telephone. The new policy is effective from March 31, 2020, for the duration of the COVID-19 emergency.
This guidance removes a considerable barrier for many patients during the national emergency and, importantly, allows them to stay at home.

DEA had already announced that physicians may in general prescribe controlled substances to patients using telemedicine without first conducting an in-person evaluation during this public health emergency.

Read the full guidance here.

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What are the key considerations for implementing telehealth into my practice?

Telehealth is a mode of remote care delivery using electronic information and communication technologies. There are various considerations any practice should keep in mind when electing to conduct telehealth. A few considerations below.

  • State Requirements – Each state has their own unique requirements. In California, physicians using telehealth must be licensed in California. More information can be found on the Medical Board of California’s website. In the face of COVID-19, expedited authorizations of out-of-state medical personnel are being conducted. More information can be found on the Emergency Medical Services Authority’s website.
  • Patient Consent and Documentation – California requires that a physician initiating the use of telehealth inform the beneficiary, obtain consent to the telehealth encounter, and maintain documentation. If a physician or their practice has a general consent protocol that references telehealth as a modality of practice, this would satisfy the consent requirement. (Note, CMA has requested non-enforcement of the consent requirement from the State during COVID-19. This guide will be updated once CMA receives a response.)
  • Reimbursement – In the past, reimbursement for telehealth was tricky. In the face of COVID-19, however, the laws and commercial payor policies are quickly being amended, waived, or not enforced on both the federal- and state-level to make reimbursement easier and on parity with face-to-face visits. To get more information about reimbursement on the federal and California-level for telehealth see CMA’s COVID-19 Telehealth Overview.

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What criteria should my practice consider when selecting a telehealth solution?

When selecting a telehealth solution that makes sense for you and your practice, you may want to consider the following criteria.

  • Patient and Provider Experience – Consider both the barriers to patient and physician use. For patients, a solution that offers a simple link via email or text might be easier for some patients than one requiring app downloads. For physicians, a solution that ties into or permits continued use of your EHR, offers a consent form, and allows for billing at the time of service should be considered.
  • Time to Implement – Getting a telehealth solution up-and-running can be time consuming. In the midst of COVID-19, selecting a solution that can be implemented quickly and securely, understood easily, and utilized for your own patients and with your current payer contracts is important.
  • Compliance – Due to COVID-19, the federal government is offering temporarily relief from federal regulations around HIPAA compliance. However, the best long-standing solution should be HIPAA compliant and include a workflow to obtain consent. (Note, California has not waived enforcement of state privacy laws. CMA has requested a waiver of these privacy rules during COVID-19. This guide will be updated once CMA receives a response.)
  • Cost – If telehealth is new to your practice, cost will be an important consideration. Most solutions have month-to-month commitments, allowing you flexibility based on your needs.

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What are my practice’s telehealth platform options?

There are a few different ways a practice can incorporate a telehealth solution into its daily workflow. The following are the three main telehealth solution options:

  • Patient Portal Solutions – Your existing patient portal may have a telehealth option built in, allowing you to leverage a tool you’re already familiar with.
  • EHR-Integrated Solutions – Your existing electronic medical record (EHR) platform may support one or more third-party telehealth applications, allowing remote visits that integrate directly with your EHR platform.
  • Standalone Solutions – Standalone solutions strictly facilitate remote patient communications, allowing you to use your existing EHR system for scheduling, documentation, and billing. Standalone solutions can provide the telehealth technologies directly to physicians to see their own patients or provide the telehealth technologies through a medical group to help manage overflow.

During the COVID-19 outbreak, the non-enforcement of federal privacy standards allows for the temporary use of non-public facing remote connections, such as Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, and Skype for Medicare patients. (Note, California has not waived enforcement of state privacy laws. CMA has requested a waiver of these privacy rules during COVID-19. This guide will be updated once CMA receives a response.)

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Does CMA have any recommended telehealth options?

CMA encourages physicians to utilize a telehealth solution that makes the most sense for them and their practice in both the short and long-term.

In the midst of COVID-19, however, CMA recognizes that time is of the essence. Physicians and their practices need to be able to see their patients and finding a telehealth solution that can be implemented quickly, easily, and securely is of the utmost importance. For this reason, CMA Physician Services has partnered with Amwell, the nation’s leading telehealth solution, to give all California physicians access to a turnkey telehealth solution enabling the delivery of virtual care to patients in response to the COVID-19 outbreak. Learn more at cmadocs.org/amwell.

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Can I prescribe a controlled substance via telehealth?

(Updated 3/23/20)

For as long as HHS maintains their public health emergency designation, U.S. Drug Enforcement Administration (DEA)-registered practitioners may issue prescriptions for all schedule II-V controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all conditions are met. (03/23/20)

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How will my practice be reimbursed for telehealth patient care?

(Updated 3/20/20)

Health insurance plans are required to reimburse providers at the same rate for telehealth services as they would for services provided in person. If the service is one that would otherwise have been provided in-person but is now being provided via telehealth, the plans should reimburse for that service as if it were provided in person. Practices must ensure that their documentation matches the requirements of the CPT code they are billing and appropriate use of the place of service code, 02, telehealth. (03/20/20)

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Are Medi-Cal managed care plans covered under the DHCS letter?

(Updated 3/20/20)

The Department of Health Care Services (DHCS) issued a supplement to an All Plan Letter (APL) that mirrors the DMHC’s APL. It requires Medi-Cal managed care plans to immediately begin reimbursing for telehealth services, including telephonic visits, at the same rate as those provided in-person. In essence, if the service is one that would otherwise have been provided in-person but is now being provided via telehealth the plans should reimburse as though it was provided in-person. This order applies to Medi-Cal managed care plans that have a Knox Keene license. The Medi-Cal managed care plans are responsible for ensuring their delegated groups comply. County Organized Health Systems are also required to comply. (03/20/20)

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What about PPOs and other plans regulated by the Department of Insurance?

(Updated 3/19/20)

CMA has asked CDI whether it will be issuing a parity requirement for insurers (e.g., PPOs other than Blue Cross and Blue Shield PPOs) and the California Division of Workers’ Compensation regarding workers’ compensation carriers. CMA is also inquiring with all of the major payors about any specific billing guidance, such as modifier usage, required beyond place of service 02 when billing telehealth services.

The Blue Shield policy on telehealth follows CMS policy, allowing for a variety of services to be conducted via telehealth, including CPT 99441-99443, non-face-to-face telephone services. Click here for the list of telehealth services, Blue Shield will allow. For more information, see their COVID-19 Provider page and FAQ.

The United Healthcare (UHC) policy on telehealth follows CMS’ policy, allowing for a variety of services to be provided via telehealth. United Healthcare also allows billing of CPT codes 99441-99443, non-face-to-face telephone services. UHC has also published an FAQ. (03/19/20)

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How should I bill for telehealth services under Medi-Cal fee-for-service?

(Updated 3/19/20)

Medi-Cal’s telehealth policy allows providers to bill DHCS for any covered benefits or services using the appropriate procedure codes, either CPT or HCPCS. The codes must be billed using place of service, 02, telehealth, and the appropriate telehealth modifier must also be used:

  • Synchronous, interactive audio and telecommunication systems – modifier 95
  • Asynchronous store and forward telecommunications system – modifier GQ

DHCS defines synchronous telehealth as “two-way interactive audio-visual communication.” CMA has confirmed with DHCS that telephonic visits qualify as synchronous telehealth under this policy. (03/19/20)

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Are commercial plans in California reimbursing for telehealth services?

(Updated 3/18/20)

The Department of Managed Health Care (DMHC) has issued an All Plan Letter (APL) requiring plans to immediately begin reimbursing for telehealth services, including telephonic visits, at the same rate as those provided in-person. In essence, if the service is one that would otherwise have been provided in-person but is now being provided via telehealth the plans should reimburse as though it was provided in-person. This order applies to all health plans regulated by the DMHC, which includes all HMOs and most of the Blue Cross and Blue Shield PPO products and DMHC has confirmed the plans are required to ensure their delegated entities comply. The letter requires plans to comply immediately. However, we are seeking clarification from DMHC on how that affects services provided via telehealth prior to today. Health plans were also instructed that they may not subject enrollees to cost-sharing greater than the same cost-sharing if the service were provided in person.
It’s important for practices to ensure that the documentation matches the requirements of the CPT code they are billing and appropriate use of the place of service code, 02, telehealth, as well as any appropriate modifiers. (03/18/20)

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What services is CMS allowing for telehealth for Medicare and Medi-Cal patients?

(Updated 3/17/20)

CMS published a helpful FAQ that discusses the recent telehealth waiver, including the list of services allowed for telehealth and which place of service to use when billing, as well as any modifiers that might be required.

The HHS Office for Civil Rights (OCR) announced it will exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency.
CMA is seeking clarification on whether telephonic visits qualify as telehealth under CMS guidelines. CMA is reviewing whether any state laws would need to be waived for these forms of telehealth to be utilized for California patients insured through Medi-Cal and commercial payors. (03/17/20)

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Testing

What are testing protocols for COVID-19?

(Updated 3/23/20)

The CDPH has issued guidance regarding prioritization of patients for laboratory testing, which is now available in a number of public health, commercial and hospital laboratories in California, however broad scale testing is not available. (03/23/20)

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Why are we not able to test with Quest and LabCorp?

(Updated 3/23/20)

Quest and LabCorp indicate that they are performing COVID-19 tests and have information on their websites regarding how the tests can be ordered. Both labs indicate on their website that specimens must be collected by providers and that the laboratory in-office phlebotomists will NOT collect respiratory specimens, including those from patients suspected of having COVID-19. Specimens must be sent by the provider using standard procedures. As of March 21, the current turnaround time for testing at both labs is 3-4 days. (03/23/20)

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Where are the testing sites, and what is the procedure for referring patients for testing? What kind of equipment is needed? How can medical offices receive the test kits?

(Updated 03/18/20)

The CDPH has updated guidance for providers seeking COVID-19 testing for patients, which includes how to access testing, equipment needed to obtain a specimen and reporting the results. (03/18/20)

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How do we report COVID-19 test results to public health?

(Updated 3/27/20)

Providers should report laboratory confirmed COVID-19 cases to their local public health department. Your local public health department may have issued specific guidance regarding testing, reporting, and managing COVID-19 cases; check your department’s website for more information. 

 

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Can anyone with URI symptoms be told they do not have COVID if there is a known wide variation of no symptoms to mild-severe illness?

Due to the range in symptoms presented in confirmed cases, ranging from asymptomatic to severe illness, whether a patient has COVID-19 can only be determined through a positive laboratory test for COVID-19. See CDC Guidance “Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings” for additional information about infection control and triaging patients. (03/22/20)

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What CPT code do I use with a COVID-19 test?

(Updated 3/13/20)

The American Medical Association (AMA) approved a new addition to the Current Procedural Terminology (CPT®) code set to help streamline data-driven resource and allocation planning. For quick reference, the new Category I CPT code and long descriptor are: 87635: Infectious agent detection by nucleic acid (DNA or RNA); severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) (Coronavirus disease [COVID-19]), amplified probe technique. (03/13/20)

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Is there any patient cost-sharing for COVID-19 related testing and screening?

(Updated 3/09/20)

Governor issueddirective requiring health insurance companies to waive member cost-sharing amounts for screening and testing for the COVID-19 disease. Both CDI and the California Department of Managed Health Care (DMHC) notified payors that they must immediately eliminate cost-sharing, including but not limited to co-pays, deductibles and coinsurance for medically necessary screening and testing for COVID-19 and associated hospital, emergency department, urgent care and provider office visits where the purpose of the visit is to be screened and/or tested for COVID-19. (03/09/20)

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What ICD emergency code do I use?

(Updated 3/02/20)

A new ICD-10 emergency code (U07.1, 2019-nCoV acute respiratory disease) has been established by the World Health Organization (WHO). Click here for interim coding guidance from the Centers for Disease Control and Prevention (CDC). (03/02/20)

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Prescribing

Can I prescribe buprenorphine for opioid use disorder without an in person evaluation?

(Updated 04/01/20)

Physicians managing patients with opioid use disorder can now prescribe buprenorphine to new or existing patients based on telephone visit as the COVID-19 pandemic continues, thanks to new flexibility announced on Tuesday by the U.S. Drug Enforcement Administration (DEA).

The new guidance allows physicians and other health care providers who have a waiver to prescribe buprenorphine for the treatment of opioid use disorder to issue these prescriptions to new and existing patients based on an evaluation via telephone. The new policy is effective from March 31, 2020, for the duration of the COVID-19 emergency.
This guidance removes a considerable barrier for many patients during the national emergency and, importantly, allows them to stay at home.

DEA had already announced that physicians may in general prescribe controlled substances to patients using telemedicine without first conducting an in-person evaluation during this public health emergency.

Read the full guidance here.

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Can I prescribe a controlled substance via telehealth?

(Updated 3/23/20)

For as long as HHS maintains the public health emergency designation, DEA-registered practitioners may issue prescriptions for all schedule II-V controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all conditions are met. (03/23/20)

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Do the regulatory requirements to not overprescribe antibiotics still apply?

(Updated 3/23/20)

Prescribing medication for patients is one of the most common therapeutic acts in which physicians engage. Proper prescribing relieves symptoms and helps to cure disease. Careless and excessive prescribing, on the other hand, is likely to cause problems for the patient as well as the physician. Many of the disciplinary actions of the Medical Board of California (MBC) involve the over-prescribing of drugs. See the attached CMA On-Call document on Drug Prescribing for more information about appropriate prescribing.

On March 20, the CDPH issued AFL-20-26 “Suspension of Regulatory Enforcement of Hospital Requirements.” This AFL may provide hospitals with the ability to relax adherence to established Antimicrobial Stewardship Initiatives that are in place as a condition of hospital licensing. Physicians are still subject to regulatory oversight by the Medical Board of California and any complaints would be assessed based on whether the physician was providing treatment that was within the standard of care at the time that care was provided. There has been no specific waiver of regulatory requirements related to prescribing antibiotics.

AFL-20-26 “Suspension of Regulatory Enforcement of Hospital Requirements” states that CDPH is temporarily waiving licensing requirements and suspending regulatory enforcement of all licensing requirements for hospitals with the following exceptions:
Hospitals shall continue to comply with adverse event and unusual occurrence reporting requirements specified in HSC section 1279.1 and Title 22 California Code of Regulations section 70737(a). Hospitals shall report any substantial staffing or supply shortages that jeopardize patient care or disrupt operations.

Hospitals shall continue to provide necessary care in accordance with patient needs and make all reasonable efforts to act in the best interest of patients. Hospitals shall follow their disaster response plan.

Hospitals shall follow infection control guidelines from CMS or CDC related to COVID-19.

Hospitals shall comply with directives from their local public health department.

CDPH will continue to investigate and conduct enforcement activities for allegations of the most serious violations impacting health and safety, pursuant to Executive Order N-27-20. (03/23/20)

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What is the current guidance regarding the use of hydroxychloroquinine for prophylaxis and for active disease?

(Updated 3/22/20)

The U.S. Food and Drug Administration (FDA) has worked closely with other government agencies and academic centers to investigate the use of the drug chloroquine, which is already approved for treating malaria, lupus and rheumatoid arthritis, to determine whether it can be used to treat patients with mild-to-moderate COVID-19 to potentially reduce the duration of symptoms, as well as viral shedding, which can help prevent the spread of disease. Studies are underway to determine the efficacy in using chloroquine to treat COVID-19. While there are no FDA-approved therapeutics or drugs to treat, cure or prevent COVID-19, there are several FDA-approved treatments that may help ease the symptoms from a supportive care perspective. (03/22/20)

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Physician Volunteers

Can retired physicians without an active license volunteer?

(Updated 04/02/20)

Under normal circumstances, individuals who do not have an active medical license cannot volunteer to practice medicine. Governor Newsom has, however, created a path for retired physicians to volunteer during the COVID-19 public health emergency. On March 30, 2020, Gov. Newsom issued an executive order directing the Department of Consumer Affairs to work with health care licensing boards to develop a process to quickly reinstate active licenses for licensees with inactive and retired licenses who wish to provide care during the declared emergency. The waiver applies to a license in retired, inactive or canceled status, and has been in such status no longer than five years. Individuals interested in bringing their license back to active status should contact the Medical Board of California or the Osteopathic Medical Board of California. 

Any physician who wishes to volunteer is encouraged to sign up for California Health Corps. There are also opportunities for physicians without an active licenses to serve as a remote coach to provide emotional support to physician colleagues impacted by COVID-19 (training provided).

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Can medical residents volunteer for the California Medical Assistance Team (CAL-MAT) program?

(Updated 04/02/20)

Physicians with an active medical license are eligible to participate in state medical volunteer programs, including CAL-MAT and the Disaster Health Care Volunteers.

All interested health care volunteers are encouraged to sign up for California Health Corps.

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Will my medical malpractice insurance cover services provided outside my usual practice?

(Updated 04/02/20)

Physicians should contact their professional liability carriers for information regarding their coverage and liability for care provided in a volunteer role. Physicians who join the California Health Corps will be paid and receive malpractice coverage.

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Is there immunity from liability for volunteer physicians, health care providers and the hospitals that host them?

(Updated 04/02/20)

Current California law provides broad immunity against liability for any physician (whether licensed in California or another state), hospital and health care provider “who renders services during any state of emergency at the express or implied request of any responsible state or local official or agency” (Govt. Code §8659; Bus. & Prof. Code §900(e)). The Governor Newsom’s emergency declaration invoked this law. Note that this immunity does not apply in the event of a willful act or omission. (Government Code §8659; see also Business & Professions Code §900(e).) The U.S. Department of Health and Human Services also issued a declaration that provides immunity for volunteers from suit and liability under state and federal law for certain actions in relation to COVID-19. While these laws provide broad immunity for health care providers during a state of emergency, each situation would need to be analyzed based on facts specific to a particular provider.

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What is the process to request authorization for an out-of-state licensed physician to practice and volunteer in California during the COVID 19 pandemic

(Updated 04/02/20)

Governor Newsom’s emergency declaration provided that “permission for any such individual rendering service is subject to the approval of the Director of the Emergency Medical Services Authority (EMSA)  for medical personnel…and shall be in effect for a period of time not to exceed the duration of this emergency.”  EMSA has also promulgated policy to implement the Governor’s mandate, which puts the initial burden on a medical facility that needs out-of-state personnel to affirmatively request approval from EMSA. Once approval is given, the medical facility is responsible for monitoring providers retained and notifying EMSA of any unusual occurrence within 24 hours of the event occurring.

Physicians who hold a license in another state are deemed to be “licensed” in California pursuant to Government Code section 179.5 whenever a state of emergency is declared. Governor Newsom invoked this statute in his March 4th declaration of a State of Emergency. This state licensure waiver lasts only during the State of Emergency and only for purposes of “preparing for, responding to, mitigating the effects of, and recovering from COVID-19.”

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Privileging and Credentialing

Are there credentialing and privileging requirements for volunteer physicians to work in hospitals?

(Updated 04/02/20)

Federal and state laws require all physicians practicing in a hospital to be properly credentialed and privileged by the medical staff. Credentialing is the process of verifying qualifications to ensure current competence to grant privileges (i.e., verification of education, training, experience, and licensure to provide services). Privileging is the process of authorizing a specific scope of practice for patient care based on credentials and performance. Although they are separate functions, the two are usually conducted simultaneously. In California, medical staffs have primary responsibility to undertake such credentialing and privileging while hospital governing boards have final say over a decision to grant or deny credentials and privileges. Under these laws, any physician from out of state, as well as any California licensed physician, who wishes to provide any medical services at a hospital must go through the credentialing and privileging process, even if such physicians are volunteering.

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Can the credentialing and privileging process be waived or expedited for volunteer physicians during the COVID 19 pandemic?

(Updated 04/02/20)

On March 30, CMS issued a blanket waiver for all hospitals participating in Medicare and Medicaid that would be subject to credentialing and privileging requirements under 42 CFR §482.22(a)(1)-(4). The waiver effectively allows medical staffs and hospitals to forego credentialing and privileging of physicians whose privileges will expire to continue practicing at the hospital and for new physicians to be able to practice before full medical staff/governing body review and approval to address workforce concerns related to COVID-19. Governor Newsom also issued an executive order on March 30 authorizing the State Department of Public Health to temporarily waive hospital licensing requirements at Health and Safety Code §1277 and 22 CCR §§70203(a)(2), 70701(a)(1)(E), 70703(b), and 70705(a), that pertain to credentialing and privileging of physicians. The executive order, however, requires any waiver to include alternate measures that ensure the competency of physicians providing medical services at the hospital.

Despite the temporary waivers for credentialing and privileging, accrediting bodies such as The Joint Commission have yet to suspend application of standards requiring privileging and credentialing. The Joint Commission instead refers to its Emergency Management Standards for granting privileges during a disaster, EM.02.02.13. Medical staffs and hospitals can still utilize their state of emergency privileging procedures (often referred to as “disaster privileges”) or adopt such procedures that provide swift and streamlined credentialing and privileging while still providing a minimum quality control process. For example, disaster privileges can be granted based on a government i.d. and proof that the physician is privileged at another hospital.

CMA’s and the California Hospital Association’s (CHA) model medical staff bylaws have a section for granting disaster privileges. CMA and CHA conform their language to the requirements of The Joint Commission (See the Joint Commission’s Hospital and Critical Access Hospital Accreditation Manuals, EM.02.02.13). Consequently, most medical staffs in California have bylaws or policies establishing a process for granting disaster privileges. See Section 5.8 of CMA's Model Bylaws on “Disaster Privileges.”.)

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What can be done if the medical staff does not have a process for "disaster credentialing and privileging"?

(Updated 04/02/20)

Medical staffs and hospitals can adopt state of emergency procedures based upon CMA's Model Bylaws (section 5.8). Alternatively, the Medical Executive Committee (MEC) can adopt temporary policies and procedures for credentialing and privileging for purposes of the COVID-19 emergency. MECs, for example, can adopt a policy similar to CMA Model Medical Staff Policy on COVID-19 Emergency Credentialing and Privileging. This policy substantively conforms to CMA's Model Medical Staff Bylaws language as well as the applicable Joint Commission Standards.

 

Privacy and Security

Did the Federal government waive its enforcement of HIPAA for telehealth services?

(Updated 04/04/20)

Yes, the U.S. Department of Health and Human Service Office for Civil Rights (OCR) announced it will waive HIPAA penalties for good faith use of audio or video communication technology to provide telehealth to patients during the COVID-19 public health emergency. The intent of this approach is to allow health care providers to use popular applications that allow for remote communication that might not be secure, including Apple FaceTime, Zoom, Facebook Messenger video chat, Google Hangouts video, or Skype, to provide health care services without risk of penalty for noncompliance. Physicians are encouraged to notify patients that these third-party applications potentially introduce privacy risks and record in the medical record the patient's consent to use these technologies. Physicians should enable all available encryption and privacy modes when using such applications. Under this waiver, however, Facebook Live, Twitch, TikTok, and similar video communication applications that are public facing should not be used in the provision of telehealth. (Click here for more information regarding the HIPAA waiver.)

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Does the HIPAA waiver apply to all health care services or only to COVID-19 related services?

(Updated 04/04/20)

The waiver applies to telehealth provided for any reason, regardless of whether the telehealth service is related to the diagnosis and treatment of health conditions related to COVID-19.  For example, physicians in the exercise of their professional judgement may request to examine a patient exhibiting COVID- 19 symptoms, using a video chat application connecting the provider’s or patient’s phone or desktop computer to assess a greater number of patients while limiting the risk of infection of other persons who would be exposed from an in-person consultation.  Likewise, a physicians may provide similar telehealth services in the exercise of their professional judgment to assess or treat any other medical condition, even if not related to COVID-19, such as a sprained ankle, specialty consultation or psychological evaluation, or other conditions. 

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Have California privacy laws been waived to facilitate delivery of telehealth services?

(Updated 04/04/20)

Penalties pursuant to many California laws have been suspended to accommodate greater use of telehealth consistent with the HIPAA waivers (described above), though the laws themselves remain in place. The California Department of Public Health waived nearly all licensing requirements under Division 2, Chapter 2 of the Health and Safety Code (which includes sections 1280.15 and 1280.18) until June 30, 2020, which may be extended as needed. Subsequently, in an Executive Order on April 3, 2020, the Governor suspended: administrative fines, civil penalties, and private rights of action under the California Medical Information Act (CMIA) contained in Civil Code sections 56.35 and 56.36 for disclosures made during the good faith provisions of telehealth services; civil penalties contained in Civil Code sections 1798.29 and 1798.82 and related causes of action related to the timely notification to patients of security breaches that occur during the good faith provision of telehealth services; administrative penalties contained in Health and Safety Code sections 1280.15 and 1280.17 and related causes of action related to the unauthorized access or disclosures that occur during the good faith provision of telehealth services; and criminal penalties contained in Welfare and Institutions Code section 14100.2(h) and related causes of action related to the release of information regarding Medi-Cal beneficiaries during the good faith provision of telehealth services.

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What California privacy laws are relevant for physicians providing telehealth services?

(Updated 04/04/20)

The California Medical Information Act (CMIA) and other privacy laws remain in effect, though certain penalties and the ability to pursue private causes of action were suspended in the Governor's April 3 Executive Order. Health & Safety code section 1280.15 and 1280.18, Civil Code 1798.82, and the CMIA each obligate health care providers to prevent unlawful or unauthorized access to and disclosure of patients' medical information and safeguard patients' medical information – penalties for failure to do during the good faith provision of telehealth services were suspended in the Governor's April 3 Executive Order. Health care providers must still comply with notification requirements in Health and Safety Code section 1280.18, but the time period for such notifications was extended from 15 days to 60 days. No penalties have been suspended for the provision of any services that are not telehealth.

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Are patients required to consent to telehealth services under California law?

(Updated 04/04/20)

In his April 3 Executive Order, the Governor suspended the requirements contained in Business and Professions Code section 2290.5 to obtain and document a patient's verbal or written consent to telehealth services.

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What do I have to do if I discover a breach or suspected breach of patient data?

(Updated 04/04/20)

In his April 3 Executive Order, the Governor suspended penalties and causes of action contained in Civil Code 1798.82 with regard to inadvertent, unauthorized access or disclosure that occurs during the good faith provision of telehealth services and extended deadlines for notifications pursuant to Health and Safety Code section 1280.15, which now must be made within 60 days (extended from 15 days). No suspensions have been issued with regard to breaches or suspected breaches of patient data not related to the good faith provision of telehealth services.

 

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Miscellaneous

What health care services are currently considered ‘non-essential’?

(Updated 3/26/20)

On March 18, 2020, CMS announced that all elective surgeries, non-essential medical, surgical, and dental procedures be delayed during the pandemic. The determination of whether a service is ‘non-essential’ is done on a case by case basis, and physicians should consider resource conservation such as; the supply of personal protective equipment (PPE), hospital and intensive care unit beds, and ventilators. In addition, physicians should take into account:

  • The current and projected COVID-19 cases in the facility and region.
  • Supply of PPE to the facilities in the system
  • Staffing availability
  • Bed availability, especially intensive care unit (ICU) beds
  • Ventilator availability
  • Health and age of the patient, especially given the risks of concurrent COVID-19 infection during recovery
  • Urgency of the procedure (03/26/20)

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Can my patient still apply for Covered California health insurance plans?

(Updated 3/23/20)

Covered California has extended its enrollment window through the end of June 2020. To free up resources for the expected surge of new enrollees, California has put a 90-day hold on Medi-Cal renewal reviews, meaning that those already enrolled can continue their coverage through this time. Visit CoveredCA.com for more information. (03/23/20)

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I’m serving on the front lines of COVID-19 – where can I share my story?

(Updated 3/23/20)

CMA’s partner podcast, The Nocturnists, is collecting stories about the physical, intellectual, emotional and spiritual experience of being on the front lines of the COVID-19 pandemic. (03/23/20)

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I want to volunteer my services – is there an effort underway to mobilize physicians across the state to support patient care?

(Updated 3/19/20)

CMA is working with the State of California to identify physicians that are willing to help care for patients, both COVID-19 and non COVID-19, in hospitals and new facilities around the state. There are paid and volunteer positions available - and there's no wrong door in service to your community. To pursue volunteer opportunities, please fill out CMA’s Google form. Paid positions can be explored on the California Medical Assistance Team (CAL-MAT) website. (03/19/20)

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COVID-19
Resources

Resources for physicians and health care providers on the latest news, research and developments.

Terms of Use

Your use of the CMA website, including information provided on the COVID 19 Resource Page is governed by the Terms of Use and Privacy Policy linked below.  All CMA Content, including COVID 19 related content, is provided for informational purposes only and is not intended as medical or legal advice, or as a substitute for the medical advice of a physician or the legal advice of an attorney. Physicians should contact their professional liability and other insurers and an attorney for specific advice.

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