As confirmed cases of COVID-19 near 1 million worldwide and are now over 210,000 in the United States, the world is facing a new normal. Social distancing has changed the way we interact. Only essential businesses remain open. An unprecedented number of employees are now working from home. And colleges and universities across the country have been forced to embrace technology, as many higher education institutions shift to online learning for at least the remainder of the semester.
To date, over 3,200 higher education institutions have been impacted by COVID-19, which translates to over 22 million students nationwide affected in some way. Now, many students are unsure about the future of their education and are unable to receive the on-campus medical and mental support they need. In fact, a recent survey found that only 21% of college students feel that their lives have not been dramatically changed, except for the shift to online course work. This means that a majority of students across the country are feeling the effects of their collegiate lives turned upside down by COVID-19.
The COVID-19 pandemic has generated an unprecedented demand for telehealth services.
Healthcare resources at higher education institutions are dealing with a student population dispersed across the country because of campus closures to limit the spread of the virus. Medical and mental health providers are left to sort through the complication of state licensures for out-of-state students and the possible legal implications of non-compliance, such as loss or suspension of licensure.
At this time, the recommendation from the federal government is for all states to issue emergency licensure waivers to allow clinicians with licenses in good standing to deliver care nationwide, but it is the decision of each individual state to manage emergency licensure waivers during the COVID-19 pandemic. Unfortunately, states are not uniformly waiving licensure requirements for medical and mental health providers.
This confusion at the state level has led some higher education institutions to act upon the federal recommendation, and provide care across state lines that may not be compliant with the current state regulation. There remains great variance between states, with some waiving requirements entirely, some providing forms of emergency licensure, and others not providing any declaration.
The U.S. Department of Health and Human Services (HHS) Office for Civil Rights also recently stated that it “will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.” This means that providers can utilize non-encrypted video technology — like Zoom, Google Hangouts, and Apple FaceTime — during the COVID-19 emergency.
However, the removal of technology regulations does not remove the need for other compliance issues related to care, like state licensure. The HHS has also recommended using video platforms with encryption whenever possible. And the agency advises that patients should be alerted to the fact non-encrypted third-party platforms pose a privacy risk.
Providers at college and university campus clinics who are currently using or considering virtual care need to consider the following:
- Where are my out-of-state students located?
- Have the state licensure requirements in those states been altered by the COVID-19 emergency declaration?
- What technology is best to leverage for video and voice communications with patients? Is the technology HIPAA compliant?
- What is the digital intake process for students?
- Does our clinic or institution’s malpractice insurance cover virtual care? Does it cover care across state lines or provide adequate coverage given each state’s differing malpractice environment/tort reform?
- What are the state-specific telehealth standards of care?
- What are the state-specific mandatory reporting laws?
- Are there state-specific telehealth specific informed consent requirements? And how is consent received?
- What are the electronic prescribing restrictions?
- What is the safety plan for students who need to be referred locally for treatment?
Additionally, there are considerations for telehealth-specific privacy and security laws, as well as state laws regarding the emergency practice of medicine and the continuing treatment obligations of providers once a doctor-patient relationship has been established.