MLMIC stands with you

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.