MLMIC stands with you

Posted 7/23/21

Yes. New York State ended its state of emergency on June 25, 2021. However, the federal guidelines issued by the CDC remain in effect.  Therefore, physicians may either adhere only to the CDC guidelines, or they may implement more stringent policies in their office. 

Posted 7/23/21

Yes. The CDC has advised that individuals who are fully vaccinated do not need to wear a mask or observe social distancing. However, since not every patient is vaccinated, and some patients are not honest in answering the question about being vaccinated or have conditions that preclude being vaccinated, mask wearing and social distancing may well be indicated in a physician’s office to protect other patients. Thus, a stricter policy may be implemented.  

 When a patient calls for an appointment, the patient should be informed about the office policy. If the patient refuses at that time to wear a mask to the appointment or discloses his/her vaccine status, a telemedicine appointment should instead be offered to that patient. This is especially true because of the new COVID-19 variant now present in N.Y. If, however, the patient is unable to wear a mask for a true medical condition, the patient does need to be accommodated under the Americans with Disabilities Act. An accommodation may be scheduling the patient’s visit at the latest time of day and immediately placing the patient in a room. Regardless of the situation, it is important to try to de-escalate some of the behavior that patients who refuse to wear masks engage in. 

Posted 7/23/21

Yes. If the patient is both competent and does not require the physical assistance of a third party, the physician may mandate that accompanying individuals wait outside of the office. However, if the patient has dementia or a physical or mental disability that requires the assistance of a third party or companion, the physician must accommodate that patient’s needs. 

Posted 7/23/21

No. However, New York officials still recommend quarantine for all travelers who are not fully vaccinated or have not recovered from Covid-19 during the previous three months. Recommendations include either: testing three to five days after arriving in New York and self-quarantine for 7 days; or self-quarantine for 10 days if testing is not obtained. 

International air travelers to New York from another country may be required to test before returning to the U.S.  

Posted 7/23/21

Yes. The appropriateness of providing services via telemedicine or telephonically is a clinical decision which should be documented in the patient’s record. 

Posted 7/23/21

Yes. You may use just a telephone to provide telemedicine visits to most patients, especially those who do not have computers. However, a patient’s medical condition or problem must be such that it can reasonably be treated over the telephone and does not require either a visual confirmation of a problem or an actual physical examination.  

Posted 7/23/21

Although it is not necessarily required, it may be in the best interests of providers and patients to do so since there will be a baseline and knowledge of the actual condition of patients. 

Posted 7/23/21

Yes. Under the current rules, you may continue to provide buprenorphine induction via telemedicine/telephone services to patients, but it may be in the best interests of providers and patients to have a baseline evaluation of patients before doing so. 

Posted 7/23/21

Yes. Medicaid providers may continue to provide telephone-only services to recipients of Medicaid at this time, since the pandemic is not completely over. That may change at some time in the future but not right now. 

Posted 7/23/21

Yes. Verbal informed consent may be obtained for telemedicine, but we recommend that a written consent form be sent to the patient to sign and return to you as soon as possible after the first visit.  The contents of a telemedicine consent form may be read to the patient during the initial telemedicine service, and the verbal consent of the patient may be obtained. However, it is crucial that the fact that you had a consent discussion with the patient and that the patient did consent be well documented in the patient’s medical record. A copy of the consent form should be added to the patient’s record. 

Posted 8/3/21; Updated 8/3/21

The NYS Boards for Medicine and Veterinary Medicine; and State Committees for Athletic Training, Medical Physics, Pathologists’ Assistants and Perfusion recently responded to an inquiry on this topic with the following:

Telemedicine is an option for any patient at any time if the provider deems it appropriate. Providers can refuse care on any basis and vaccination status isn’t a legally protected status like race or religion.

While this statement does suggest a provider may refuse to care for patients who refuse to be vaccinated, we urge caution, as you also need to avoid a claim of abandonment which is considered professional misconduct under Education Law sec. 6530. It can also be grounds for a professional liability claim against you.

When it comes to patients in your practice who have declined to be vaccinated against COVID-19, we recommend the following steps:

1. Post signage at your door stating that masks are still required for entrance. You should also include this requirement in your telephone messaging, and on your website.
2. Continue to follow all CDC and NYS DOH guidelines regarding infection control in your practice setting;
3. Encourage all patients who qualify to receive a COVID-19 vaccine. Here is a good CDC resource that can assist in this endeavor: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/forum/resources.html;
4. For patients who still refuse to be vaccinated, determine whether a telehealth encounter is appropriate for their condition;
5. Should it become necessary to see an unvaccinated patient in your practice setting, there are a few steps you can take:
   • Inform the patient upon scheduling the appointment and upon confirmation, that wearing a mask or other appropriate face covering is required while at the practice.
   • Insist the patient wear their mask. Depending upon the patient’s needs, a face shield may be an  appropriate alternative.
     1. Dependent upon the practice’s specialty, you and the staff may also want to consider face shields for close contact.
   • Upon arrival, have the patient check-in via telephone, rather than in-person at the registration desk.
     1. Where feasible, have the patient wait in the car until you are ready for their appointment.
   • Have the patient go directly to the exam room to wait for their appointment.
     1. If available, have the patient use a side entrance, or some other entrance that has less traffic.
   • Wear a mask yourself, and follow all appropriate protocols when providing care to the patient.

Ultimately, if you wish to discharge patients who refuse to be vaccinated, you may due so, subject to the following:

1. Advise patients that it is practice policy for all qualified patients to be vaccinated against COVID-19;
   1. If this is your practice policy, consider signage to that effect;
2. Verify that the patient does not have any immediate medical needs, where dismissal would impact their ongoing care;
3. Determine whether the patient’s refusal is based upon a medical condition or genuinely-held religious belief. If either is the case, we would not recommend dismissing a patient upon these grounds;
4. Follow standard advice regarding the dismissal of a patient. This includes dismissal in writing, and at least 30 days notice (offering to treat in an emergency only), so the patient has an opportunity to obtain appropriate care elsewhere.
   1. The law firm of Fager Amsler Keller & Schoppmann, Esq. has resources on the appropriate dismissal of patients from care.  Their attorneys are also available for consultation on these issues.

Posted 3/19/20

No. Federal and State privacy law still apply to medical services delivered by telemedicine. The Coronavirus Appropriations Act does not contain any exemptions for HIPAA or its implementing regulations. Providers should continue to provide telemedicine services using HIPAA-compliant telecommunications methods, enter into business associate agreements with technology vendors, when applicable, and comply with the minimum necessary standard for disclosures of protected health information.

Similarly, none of the recent NYS legislation enacted relative to the COVID-19 crisis exempts the State privacy laws. Accordingly, you must ensure that medical services delivered by telemedicine are in compliance with HIPAA and the stricter New York privacy laws.

Some recommendations related to privacy:

• Use HIPAA compliant technology,
• Use a secure connection;
• Use encrypted data;
• Ensure that virtual visits are not audible to outside parties.

Posted 3/19/20

Yes. the HIPAA Privacy Rule always allows patient information to be shared for the following purposes and under the following conditions in emergency situations:

• Treatment: Under the Privacy Rule, covered entities may disclose, without a patient’s authorization, protected health information about the patient as necessary to treat the patient or to treat a different patient.
• Public Health Activities: The HIPAA Privacy Rule recognizes the legitimate need for public health authorities and others responsible for ensuring public health and safety to have access to protected health information that is necessary to carry out their public health mission. Therefore, the Privacy Rule permits covered entities to disclose needed protected health information without individual authorization:
  • To a public health authority, such as the CDC or a state or local health department, that is authorized by law to collect or receive such information for the purpose of preventing or controlling disease, injury or disability.
  • At the direction of a public health authority, to a foreign government agency that is acting in collaboration with the public health authority.
  • To persons at risk of contracting or spreading a disease or condition if other law, such as state law, authorizes the covered entity to notify such persons as necessary to prevent or control the spread of the disease or otherwise to carry out public health interventions or investigations.

Posted 3/19/20; Updated 5/19/20

Yes! The New York State Department of Financial Services will require insurance companies to waive co-pays for telehealth visits. This action will encourage New Yorkers to seek medical attention from their homes rather than visit a hospital or doctor’s office – https://www.governor.ny.gov/news/during-coronavirus-briefing-governor-cuomo-announces- department-financial-services-will-require

In addition, NYS Medicaid expanded coverage of telehealth services in 2019. Per the Insurance Law and Public Health Law, services that are covered under a comprehensive health insurance policy or contract cannot be excluded when the service is delivered via telehealth. To the extent it is practical, the Department is encouraging the use of telehealth to provide COVID-19 related services to Medicaid members. More information on the current telehealth policy can be found:
https://www.health.ny.gov/health_care/medicaid/program/update/2020/docs/mu_no05_2020-03-21_covid-19_telehealth.pdf

Medicare reimbursement for telemedicine has recently been changed by HR.6074 – Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020. In Division B of that Act it basically provides for a temporary waiver based upon the originating site and geographic requirements for telehealth services provided to Medicare beneficiaries located in an identified “emergency area” during an “emergency period” when provided by a qualified provider.

To qualify for the waiver, the provider must have treated the patient within the previous three years or be in the same practice (i.e., as determined by tax identification number) of a practitioner who has treated the patient in the past three years.
https://www.congress.gov/bill/116th-congress/house-bill/6074/text

Private insurers are also adapting their reimbursement policies and CPT codes for COVID-19:
https://www.ama-assn.org/press-center/press-releases/new-cpt-code-announced-report-novel-coronavirus-test

Moreover, here are some ways health insurance providers are taking action:
https://www.ahip.org/health-insurance-providers-respond-to-coronavirus-covid-19/

Posted 3/24/20

Yes, all hospitals and other certificate holders will be notified if your coverage is suspended.

Posted 3/27/20

In short, yes. Our best interpretation is that there will be immunity provided under the temporary order. The Governor wants to ensure that there are enough physicians to treat both, patients with COVID-19 and other ill patients within the State of New York. To that end, his words are to grant immunity from harm or death caused by an act or omission by a physician “in the course of providing medical services in support of the State’s response to the COVID-19 outbreak.”

Posted 3/27/20

No, the law in New York defines gross negligence to be conduct that evinces a reckless disregard for the rights of others or that smacks of intentional wrongdoing. Medical actions taken in good faith to treat patients in a state of emergency and disaster will not be gross negligence.

Posted 5/1/20

Call the New York State Coronavirus Hotline: 1-888-364-3065. Or, contact the New York State Department of Health: Covidproviderinfo@health.ny.gov

Posted 3/19/20; Updated 3/20/20

Yes, MLMIC will cover you for potential claims arising from medical services delivered using telemedicine subject to the terms, conditions, and exclusions of your policy if:

• You are licensed in the state where the patient is being treated.
  • This includes states with licensure reciprocity with New York;
  • The temporary waiver of requirements that out-of-state providers be licensed in the state where they are providing services when they are licensed in another state (this applies to both Medicare and Medicaid); and
  • Any future Federal regulation that will allow doctors and other medical professionals to practice across state lines, even if they are not licensed to practice in a particular state;
• You are practicing within the scope and specialty listed on your declaration page.

If you have additional questions regarding coverage, please contact MLMIC Underwriting at (800) ASK-MLMIC (1-800-275-6564).

Posted 3/19/20

Maybe. The same standard of care applies, but you will be providing that care in new situations and in new ways. Telemedicine potentially exposes a physician to increased risk simply because the patient is not physically present for testing and examination. In addition, physicians will need to address the privacy concerns mentioned above. Some ways to mitigate these risks include, but are not limited to:

• Create, maintain and update medical records for all telehealth provided similarly to an in-office visit;
• Adhere to the same follow-up care requirements as in-office visits; and
• Remember that any issuance of professional advice or treatment, even if gratuitous, is considered part of a physician-patient relationship
• Keep updated on the literature regarding the use of telemedicine in the COVID-19 environment;
• Keep updated on the use of telemedicine provided by State and Federal agencies;
• Keep updated with risk management and legal updates by MLMIC;

In the age of COVID-19 telemedicine represents a key component in the diagnosis and treatment of the virus. It is vitally important that physicians practicing telemedicine keep apprised of changes that will play a role in their delivery of essential medical services during this time of crisis. Additional information may be obtained through MLMIC at tgray@mlmic.com and Fager Amsler Keller & Schoppmann, LLP at amercado@fakslaw.com and nmayskinner@fakslaw.com

Posted 3/17/20; Updated 5/1/20

New York State and the federal governments have passed or declared immunities with limited protections from liability for healthcare professionals and entities. Each act and declaration varies, and each provides an exception for gross negligence or willful misconduct. For specific questions, please email mvanauken@fakslaw.com or call 518-786-2880.

New York passed legislation, the Emergency Disaster Treatment Protection Act, that provides immunity to healthcare professionals and health care facilities from any civil or criminal liability, meaning that they are not liable for any harm or damages, alleged to have been sustained as a result of an act or omission in the course of arranging for or providing the diagnosis, prevention, or treatment of COVID-19; or the assessment or care of an individual with a confirmed or suspected case of COVID-19; or the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration.

The federal government has enacted the CARES Act Legislation, which provides that a volunteer healthcare professional will not be liable under federal or state law for any harm caused by (1) an act or omission of the professional in their services related to the diagnosis, prevention, or treatment of COVID-19 or (2) the assessment or care of the health of a human being related to an actual or suspected case of COVID-19.

The federal government issued a declaration pursuant to the federal Public Readiness and Emergency Preparedness Act (PREP Act), which provides certain liability protections for licensed health professionals and entities related to prescribing, administering, or dispensing “Covered Countermeasures” – defined as “any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, or any device used in the administration of any such product, and all components and constituent materials of any such product.”

Posted 5/1/20

MLMIC is pleased to extend medical professional liability coverage to retired physicians who were last insured with MLMIC and are coming back to volunteer to provide care during the COVID-19 pandemic. Learn more.

Posted 3/23/20

If you come out of retirement to assist during the COVID-19 pandemic, it will not terminate your free tail coverage from MLMIC, nor will it alter your ability to report claims from your expired policy. But, you will need new coverage for the work you are returning to do. You can check to see if you have this coverage from your employer or hospital, or if you would like to speak with us about providing this coverage, please call or email us.

Posted 3/24/20

When we underwrite you and your practice, ‘suspension of practice’ means that you are no longer providing any professional services for a period up to one year. Under these circumstances, you may request MLMIC to suspend your policy. If approved, an endorsement will be issued to remove coverage from your policy while it is suspended. You should notify MLMIC in advance of the date you wish to return to practice so that your coverage may be reinstated on a timely basis.

Posted 3/24/20

Yes, claims made policyholders can receive a discount during the suspension period and can still report claims which relate to professional services provided prior to the suspension period. Occurrence policyholders do not pay premium during the suspension period. For more specifics, and/or any questions, please contact the MLMIC Underwriting Department.

Posted 3/24/20

There would be no coverage for a claim resulting from professional services provided (or that should have been provided) during the period of suspension.

Posted 3/24/20

If you believe you still need to provide professional services while your policy is suspended (e.g., provide medical advice, fill prescriptions, respond to an emergency, etc.), then your policy should not be suspended. You may wish to consider part-time coverage instead.

Posted 3/27/20

Yes, a physician’s policy with MLMIC Insurance Company will cover their medical care and treatment that is outside of their normal practice so long as it is taken in support of New York State’s response to the COVID-19 outbreak.