Social Security

Identification Number:	EM 23027
Intended Audience:	RO/DDS/DPU/DPB/EST/OQR/OHO/CPO
Originating Office:	ORDP ODP
Title:	Information Security Instructions and Scheduling Requirements for Telehealth Consultative Examinations
Type:	EM - Emergency Messages
Program:	Disability
Link To Reference:	See Reference at the end of this EM

Retention Date: October 04, 2023


A. Purpose

The purpose of this Emergency Message (EM) is to provide policy and procedures for telehealth consultative examinations (THCE) conducted after the final day of the COVID-19 Public Health Emergency, May 11, 2023. For THCEs conducted through May 11, 2023, the Disability Determination Services (DDS) may follow either the guidance in EM-21073 SEN (which expires May 11, 2023) or the guidance in this EM. For examinations that occur after May 11, 2023, the DDS may schedule THCEs under the procedures set forth in this EM; the DDS may also schedule video CEs under the existing procedures in DI 22510.012. Updates to our Program Operations Manual System (POMS) will follow shortly.

B. Background

A THCE is a consultative examination that uses audio and video technology to allow remote interaction between a CE provider and a claimant or beneficiary.

NOTE: For the remainder of this EM, we will use “claimant” to refer to both claimants and beneficiaries.

Before the COVID-19 national public health emergency, we limited the use of audio and video technology for CEs to psychiatric and psychological CEs that do not require standardized testing. These THCEs were permitted only in agency-provided locations with agency-provided audio-visual equipment and secure broadband connections (DI 22510.012).

During the COVID-19 national public health emergency, the Department of Health and Human Services (HHS) temporarily modified enforcement of the Health Insurance Portability and Accountability Act (HIPAA) Rules in connection with the good faith provision of telehealth services using non-public facing audio or video communication products. Consistent with HHS’s action, we quickly expanded authority to schedule THCEs using a wide variety of other technologies and with claimants attending the examinations from private locations of their choice (including private homes) to help facilitate timely disability decision-making. In December 2021, we expanded emergency THCE authority to include some speech and language examinations.

Based on current COVID-19 trends, the HHS is planning for the federal Public Health Emergency (PHE) for COVID-19, declared under Section 319 of the Public Health Service (PHS) Act, to expire at the end of the day on May 11, 2023. The HHS has explained that the Notification of Enforcement Discretion (explained here) will remain in effect until the Secretary of HHS declares that the public health emergency no longer exists, or upon the expiration date of the declared public health emergency, including any extensions, whichever occurs first. This EM revises our guidance on permissible technologies for THCEs.

C. Policy for THCE scheduling

1. General guidelines

The Disability Determination Services (DDS) may schedule a THCE only if all the following requirements are met:

· We permit telehealth for the type of examination needed (see Section C.2),
· The claimant (or parent of a minor child or legal guardian) agrees to the claimant’s participation in a THCE (see Section C.3),
· The claimant meets all the requirements in Section C.4.a, and
· The CE provider meets all the requirements in Section C.4.b.
2. Types of THCEs permitted

DDS may schedule the following types of THCEs for claimants aged 5 and older:

a. Psychiatric CEs
b. Psychological CEs without standardized testing
c. Speech and language CEs

· When scheduling a speech and language THCE for a child whose primary language is Spanish, DDS must require the CE provider to use standardized tests published in Spanish.
· When scheduling a speech and language THCE for claimants whose primary language is not English, DDS must choose a provider who is fluent in the claimant’s primary language.
· DDS must not use interpreters for speech and language THCEs.

3. THCE agreement requirement

DDS may only schedule a THCE if the claimant (or parent of a minor child or legal guardian) agrees in advance to the claimant’s participation in a THCE. DDS will schedule an in-person CE in the absence of such agreement. For detailed agreement requirements, see Section D.

DDS may schedule a THCE in which a claimant uses a personal device at the claimant's home or other private location of the claimant’s choosing.

4. Claimant and CE provider requirements

a. Claimant requirements

Most claimants participate in THCEs from locations of their choice. Before scheduling a CE in that circumstance, DDS, or the Office of Hearings Operations (OHO) must obtain verbal or written confirmation that the claimant will:

· Participate from a private, indoor, quiet environment conducive to the examination,
· Have a reliable internet connection, and
· Use a device with a camera and microphone, such as a smartphone, tablet, laptop, or desktop computer.

IMPORTANT:
1. For speech and language CEs, the claimant cannot use a smartphone because a smartphone screen is too small for standardized tests. Instead, the claimant must use a tablet (with diagonal screen display of at least 9.7 inches), a laptop, or a desktop computer.
2. Audio and video are required.
3. The parent or legal guardian of a minor child must agree to be present.

If the claimant cannot meet all the requirements set forth above, DDS will schedule an in-person CE.

b. CE Provider requirements

Qualified CE sources who are “covered entities” under the Health Insurance Portability and Accountability Act (HIPAA) as defined in 45 CFR 160.103, may provide THCEs. HIPAA and associated HIPAA Rules sufficiently protect participant privacy and agency interests. The CE provider is responsible for ensuring compliance with HIPAA’s requirements relating to telehealth platform or applications.

D. Business process requirements for THCEs

The following business process requirements supplement the general CE business process requirements in DI 22510.000.

1. Before scheduling the THCE – Agreement Business Process

a. Obtain the claimant’s agreement to participate in a THCE
The DDS or OHO must contact the claimant (parent of a minor child or legal guardian) to:
· Explain the need for a CE,
· Explain the option to attend a THCE,
· Explain the claimant requirements for a THCE in Section C.4.a,
· If applicable, explain the need for an email address to participate in a THCE, and
· Ask whether the claimant (parent of a minor child or legal guardian) understands and agrees to participation in a THCE.

IMPORTANT: DDS may make this contact by telephone or by letter in accordance with Section D.1.d or Section D.1.e. OHO must make this contact by telephone in accordance with Section D.1.d.

b. Requirements for who must agree to participate in a THCE

For adults, the claimant (legal guardian) must agree to participate in a THCE.

For children under age 12, the parent or legal guardian must agree to participate in a THCE.

For children aged 12 until attainment of age 18, both the claimant and the parent or legal guardian must agree to participate in a THCE.

IMPORTANT: Do not schedule the THCE unless the appropriate individuals agree to participate.

c. Obtaining agreement to participate in a THCE in cases with an appointed representative (AR)

The DDS or OHO must obtain the AR’s consent before making direct contact with a represented claimant (parent of a minor child or legal guardian) by telephone, unless the AR has already given permission to contact the claimant directly.

If the AR refuses to permit direct contact with the claimant by telephone:
· DDS will send a letter to the claimant (see Section D.1.e) with a copy to the AR.
· OHO will request an in-person CE.

For more information on contacting a represented claimant by telephone, see DI 31001.010B.

NOTE: Document the telephone conversation with the AR (i.e., consent or lack of consent to contact the claimant) in a form SSA-5002 (Report of Contact) in the Certified Electronic Folder (CEF) or a Case Note in the Disability Case Processing System (DCPS). DDS will upload the SSA-5002 to the CEF for electronic cases and will file the SSA-5002 in Section E - Disability Related Developments (Blue) for paper cases. OHO will upload the SSA-5002 to the CEF for electronic cases and to the Electronic Non-Medical (ENM) application for paper cases. DCPS users should ensure the Case Note is copied to the Case Development Worksheet, which is the official record of all development activities and is uploaded to the CEF. Electronic Claims Analysis Tool (eCAT) users may document the telephone conversation using Claims Communications and should ensure that the Claims Communication is signed and applied so that it is displayed in the Disability Determination Explanation (DDE).

d. Contact by telephone - DDS or OHO

When contacting the claimant (parent of a minor child or legal guardian) by telephone, DDS or OHO will:
· Verify the individual’s identity consistent with existing policy for disclosure and identity (DI 39567.210 and GN 00203.020),
· Advise the individual that personal information will be collected during this telephone call, and
· Confirm the individual is in a private location in which no one can overhear the conversation.

After confirming the individual’s identity, read aloud the following script, which provides required information for the claimant (parent of a minor child or legal guardian) to determine their willingness to participate in a THCE, and solicits the agreement/consent needed to proceed with scheduling the THCE. Pause as needed to respond to any questions the individual may ask.
SCRIPT:
<Claimant, Parent of Minor Child, or Legal Guardian Name>
· I am contacting you because we need more medical information for your (name of claimant’s) disability claim with the Social Security Administration (SSA). We are asking you (name of claimant) to attend a <mental or speech and language> consultative examination so that we can obtain that information. You (name of claimant) have the option to attend a telehealth consultative examination, and I would like to discuss that option with you. A telehealth consultative examination is conducted over the internet using video technology that allows you and the provider to see and talk with each other.
· Before we proceed, the Social Security Act allows us to collect the information you provide, which we will use to schedule the consultative examination. Providing this information is voluntary, but not providing such will result in scheduling you for an in-person examination instead of a telehealth examination. As law permits, we may disclose your information per routine uses within System of Records Notice(s) 60-0044 and 60-0320, available at www.ssa.gov/privacy. Your information may also be used in computer matching programs to establish or verify eligibility for Federal benefit programs and to recoup debts under these programs. You may locate the full Privacy Act statement on the Telehealth Consultative Examination Agreement Form.

· As I mentioned before, you (name of claimant) have the option to attend a telehealth consultative examination. A telehealth consultative examination allows you (name of claimant) to attend the appointment from your (name of claimant’s) home or other private location.
· Would you be willing to consider a telehealth rather than an in-person examination?

· To attend a telehealth examination, [you/name of claimant] will need to have three things:
o A private, indoor, quiet location where you (they) can attend the examination.
o A reliable internet connection you (they) can use for the examination.
o A device with a camera and microphone, such as:
§ A smartphone (delete smartphone if a speech and language examination),
§ A tablet (with a diagonal screen display of at least 9.7 inches if a speech-language examination),
§ A laptop, or
§ A desktop computer.
· Do you (Does [name of claimant]) have access to these three things?
· You may also need to have an email address and access to email because some of the appointment information may be sent by email.
· If you do not want to attend (do not want [name of claimant] to attend) a telehealth consultative examination, we will schedule a consultative examination in person.

· Before you decide whether you agree to attend (have [name of claimant] attend) a telehealth consultative examination, we want to make sure you know that the information technology used for your (name of claimant’s) exam will not be owned by SSA. Also, while the providers who perform the consultative examinations for us are required to use online services that meet certain privacy and security requirements, there are privacy or security risks that may be associated with use of online services.
· If you agree to attend (have [name of claimant] attend) a telehealth consultative examination, we will tell you before the examination which video technology will be used for the examination. We will also provide instructions on how to access the technology. You may be asked to agree to third-party terms and privacy policies of the video technology provider. Neither the State Disability Determination Services (DDS) nor the Social Security Administration controls the terms of service or privacy policies of third-party video technology providers.
· You can decide not to attend (not to have [name of claimant] attend) a telehealth examination at any time before the examination.

· When attending a telehealth consultative examination, you (name of claimant) must present a valid, government-issued photo identification (ID) over the video connection. You (name of claimant) may present ID documents, such as a United States (U.S.) State-issued driver’s license, U.S. State-issued ID card, U.S. passport, U.S. military ID, or U.S. tribal ID. For a child who does not have a valid, government-issued photo ID, you may present an original government-issued non-photo ID document, such as a birth certificate, or a nongovernment-issued photo ID, such as a student ID.
· Do you understand the requirements for attending a telehealth consultative examination?
· Do you agree to attend (have [name of claimant] attend) a telehealth consultative examination?

· If at any time before the examination you change your mind about attending (having [name of claimant] attend) a telehealth consultative examination, please call XXX-XXX-XXXX so that we can schedule an in-person examination. We will also include a telephone number in your appointment notice that you can use to contact us.
· What is the email address where you can receive information and instructions for the examination?
IMPORTANT: Document the telephone conversation (i.e., agreement or lack of agreement to participate in the THCE) in form SSA-5002 (Report of Contact) or a Case Note in the Disability Case Processing System (DCPS), including the date and time of the conversation, along with a copy of the script. DDS will upload the SSA-5002 to the CEF for electronic cases and will file the SSA-5002 in Section E - Disability Related Developments (Blue) for paper cases. OHO will upload the SSA-5002 to the CEF for electronic cases and to the ENM application for paper cases. DCPS users should ensure the Case Note is copied to the Case Development Worksheet, which is the official record of all development activities and is uploaded to the CEF. eCAT users may document the telephone conversation using Claims Communications and should ensure the Claim Communication is signed and applied so that it is displayed in the DDE.

e. Contact by letter - DDS
When contacting the claimant (parent of a minor child or legal guardian) by letter, DDS will send the Telehealth Consultative Examination Agreement Form attached below. OHO must contact the claimant (parent of a minor child or legal guardian) by telephone.

Telehealth Consultative Examination.pdf

If the claimant (parent of a minor child or legal guardian) does not respond to the letter, DDS will schedule an in-person CE.

If the claimant (parent of a minor child or legal guardian), completes, signs, dates, and returns the form acknowledging potential risks and agreeing to proceed, DDS may schedule the THCE without contacting the claimant (parent of a minor or legal guardian) by telephone and documenting the conversation per Section D.1.d. For guidelines on who must agree, see Section D.1.b.

REMINDER: Ensure the signed acknowledgement form is included in the CEF.

NOTE: If the claimant (parent of a minor child or legal guardian) contacts DDS by telephone after receiving the letter, answer questions, if applicable, and document the conversation per Section D.1.d. If DDS obtains all the required information by telephone, there is no need to return the form.
2. Scheduling the THCE

If the claimant (parent of a minor child or legal guardian) agrees to participate in a THCE, and DDS or OHO have documented the agreement in accordance with Section D.1.d or D.1.e, DDS will proceed with scheduling the THCE.

a. CE appointment notice from the DDS by letter

Follow existing policy for the CE appointment notice and confirmation (DI 22510.016).
In addition, the CE appointment notice must include the name of the specific video technology to be used, and:

· The instructions for how to use the chosen technology, and
· The web address for the appointment, or
· A statement that the CE provider will send the instructions for how to use the chosen technology and the hyperlink for the appointment.

In addition, the CE appointment notice must include the following statement:

If you decide that you want (name of claimant) to attend an in-person examination instead of a telehealth examination, please call us before the examination so that we can reschedule.

b. CE appointment reminder from the DDS by telephone or by letter

Follow existing policy for CE appointment notice follow up and reminders (DI 22510.019).

c. CE appointment information from the DDS or CE provider by email

The email for the THCE may include:
· The name of the claimant (parent of a minor child or legal guardian),
· The appointment date and time,
· The hyperlink to the appointment, and
· The instructions for using the video technology.

The email cannot mention the appointment is for a disability claim, the type of appointment, or any personally identifiable information (PII) (e.g., SSN or date of birth) about the claimant other than that authorized in the bullets above. For more information on using email to send PII, see AIMS GAM 15.04.07.

3. Assistance requests (AR) for THCEs

DDS will process ARs submitted by OHO (or, if applicable, other adjudicating components) for THCEs that meet all the following conditions:
· The request is for a psychiatric or psychological CE without testing, or a speech and language CE that meets the requirements in Section C.2.c.
· The requesting office has contacted the claimant (parent of a minor child or legal guardian) and has obtained agreement in accordance with the requirements in Section D.1, and
· The requesting office has documented the claimant’s (parent of minor a child or legal guardian) agreement in accordance with requirements in Section D.1.

NOTE: If the AR does not meet all the above requirements, DDS may reject the AR.

E. Conducting a THCE

1. Proper identification (ID) for THCEs

If the claimant is an adult or a child with a valid government-issued photo ID, the claimant must show the ID over the video connection as evidence of identity.

The CE provider must verify the identity of the claimant, see DI 22510.015A.3 and DI 22510.035A.

If the claimant is a child without a government-issued photo ID:

· The claimant must show, over the video connection, an original ID document as evidence of age and identity, such as a government-issued non-photo ID (e.g., birth certificate) or a nongovernment-issued photo ID (e.g., student ID), or
· The CE provider must include a physical description of the claimant in the CE report.

NOTE: If the claimant is an adult who does not have the required ID, DDS will schedule an in-person CE.

IMPORTANT: If the CE provider is unable to verify the identity of the claimant, the CE provider will terminate the THCE, and DDS will schedule an in-person CE.
2. Environment to permit proper evaluation
The CE provider must confirm that the internet connection allows both provider and claimant to adequately see, hear, and participate in the THCE.

In addition, the CE provider must also ask the claimant to confirm participation from a private location.

IMPORTANT: If these conditions are not met, the CE provider will terminate the THCE, and DDS will schedule an in-person CE.

F. CE report content guidelines for THCEs

Follow existing policy for CE report content, including the guidelines that apply to all CEs (DI 22510.015) and guidelines that apply to certain examinations only (DI 22510.048, DI 22510.060, DI 22510.102, or DI 22510.112). In addition, the CE report must include:
· A statement that the CE was conducted using video technology, and
· The name of the video application used.

Direct all program-related and technical questions to your Regional Office (RO) support staff or Processing Service Center (PSC) Operations Analysis (OA) staff. RO support staff or PSC OA staff may refer questions or problems to their Central Office contacts.

Office of Quality Review personnel should direct questions to their local management.

OHO personnel should direct questions to local management. OHO managers may seek guidance from the RO. RO managers may refer questions or unresolved issues to the Division of Field Procedures in the Office of the Chief Administrative Law Judge.

References:
DI 22510.000 Development of Consultative Examinations (CE) - Table of Contents
DI 22510.012 Use of Video Teleconferencing Technology for Psychiatric and Psychological Consultative Examinations
DI 22510.015 Information for Consultative Examination (CE) Source
DI 22510.016 Claimant Consultative Examination (CE) Notice and Confirmation Procedures
DI 22510.019 Consultative Examination (CE) Appointment Notice Follow up and Reminder
DI 22510.048 Pediatric Consultative Examination (CE) Report Content Guidelines for Mental Disorders
DI 22510.060 Pediatric Consultative Examination (CE) Report Content Guidelines for Speech and Language (SL) Impairments in Children Age 3 and Older
DI 22510.102 Adult Consultative Examination CE Report Content Guidelines for Special Senses and Speech Disorders
DI 22510.112 Adult Consultative Examination (CE) Report Content Guidelines for Mental Disorders
DI 31001.010 Disability Determination Services (DDS) Responsibilities When an Appointed Representative is Involved
DI 39567.210 DDS Disclosure of SSA Information
GN 00203.020 Identity of Claimants
AIMS GAM 15.04 Mandatory Encryption of Electronic Data on Mobile Computer Devices
AIMS GAM 15.04.07 Additional Procedures Related to Using Email (or Other Approved Methods) to send PII
ISP 3.3.6 Secure Fax Use Policy
ISP 3.3.9 Personally Identifiable Information (PII) Processing and Disclosure Policy
EM-21073 SEN Scheduling Telehealth Consultative Examinations Using Video Technology During the Coronavirus Disease 2019 (COVID-19) Public Health Emergency
45 CFR 160.103 Definitions

---