UPDATE – April 10, 2020 – Since publication of this alert, McGuireWoods published a new alert on April 9, 2020, on this topic: “COVID-19: Consolidated Medicare Telehealth Expansion Update.” Please refer to the April 9 alert as some of the information set forth in this alert has changed since its publication.
The unprecedented public health emergency created by the coronavirus
disease (COVID-19) has sparked action by the U.S. government to ensure
greater access to healthcare via telehealth services, especially for
high-risk Medicare beneficiaries, while simultaneously limiting the spread
of COVID-19.
Traditionally, Medicare beneficiaries may receive telehealth services as a
Medicare-covered service only if:
- the beneficiary is in a qualifying rural area;
- the beneficiary receives services at one of eight types of qualifying
originating sites;
- the services are provided by one of ten categories of distant site
practitioners eligible to furnish and receive Medicare payment for
telehealth services;
- the beneficiary and distant site practitioner communicate via an
interactive audio and video telecommunications system that permits
real-time communication between them; and
- the CPT/HCPCS code for the service is on the list of covered Medicare
telehealth services.
In response to the COVID-19 outbreak, the Centers for Medicare &
Medicaid Services (CMS) has relaxed some of the traditional requirements in
connection with Medicare reimbursement for telehealth services. Here are
six key takeaways regarding CMS’ and other federal agencies’ current
COVID-19 responses to expand available telehealth services for Medicare
beneficiaries:
- CMS expanded the types of patients and care settings eligible for
telehealth reimbursement. As noted above, Medicare beneficiaries generally can receive reimbursable
telehealth services only if they are located in a rural area and provided
at certain originating sites of care (e.g., in a medical facility).
However, CMS has now expanded coverage and reimbursement for telehealth
services rendered on or after March 6, 2020, by waiving the “eligible
originating site” requirement such that telehealth services can now be
provided in all care settings, including a
patient’s home.
Although statutory language provides that a Medicare beneficiary is
eligible for reimbursable telehealth services under this expanded waiver
only if such beneficiary had a Medicare-paid service from someone in the
provider’s practice in the last three years, the U.S. Department of Health
and Human Services (HHS) stated that, during this public health emergency,
to the extent any telehealth service requires a patient to have a prior
established relationship with his or her provider, HHS will not conduct
audits to ensure such prior relationship existed (i.e., reimbursement is
available for new and established patients). Certain state licensure laws
require or have been interpreted to require an established provider-patient
relationship prior to the rendition of certain telemedicine services,
including the ordering of prescription drugs. Therefore, before rendering
services to new patients via a telemedicine or telehealth encounter,
providers should confirm that they are abiding by the limitations of state
law. More information on providing Medicare-covered telehealth services
during the COVID-19 outbreak is available in
this CMS FAQ guidance.
- CMS reminded providers of the options for telehealth, virtual check-ins
and e-visits that are reimbursable. CMS
published a fact sheet
that identifies the most common HCPCS/CPT codes for reimbursable telehealth
services. The full list of covered Medicare services that are reimbursable
when furnished via telehealth are set forth at on
CMS’ website. CMS’ fact sheet also provides guidance regarding other options for the
delivery of telemedicine services, including virtual check-ins and e-visits
for established patients.
CMS’ FAQ guidance
includes additional details on providing telehealth, virtual check-ins and
e-visits.
- Providers must submit individualized requests for 1135 waivers to a
State Survey Agency or CMS Regional Office. Although CMS’ recent publications appear to characterize the expansion of
available telehealth services under the 1135 waiver as a blanket waiver of
some of the traditional telehealth requirements delineated above, based on
conversations with CMS representatives, it appears CMS is still requiring
each healthcare provider to submit requests to operate under the authority
of this 1135 waiver to either the applicable State Survey Agency or CMS
Regional Office. A provider can make such a request by sending an email to
the CMS Regional Office in the applicable provider’s service area, or by
calling the applicable State Survey Agency or CMS Regional Office.
Information on each provider (e.g., provider name, type, address, Medicare
provider number, contact person and contact information), the justification
for requesting the waiver and the type of relief the provider is seeking
will be required. The email addresses for each of the CMS Regional Offices
are found on
CMS’ website.
- OCR announced an exercise of HIPAA enforcement discretion in connection
with the good faith provision of telehealth. On March 17, 2020, the HHS Office for Civil Rights (OCR) issued a
notification of enforcement discretion for telehealth remote communications
during the COVID-19 public health emergency. In the notice, OCR recognized
that some of the remote communication technologies that providers use to
connect with patients to provide telehealth services may not be fully
compliant with HIPAA. OCR indicated, however, that it will exercise
enforcement discretion by not imposing any penalties for noncompliance with
regulatory requirements under HIPAA in connection with the good faith
provision of telehealth during the COVID-19 nationwide public health
emergency. OCR noted in its announcement that the enforcement discretion
applies to all telehealth services rendered during this time, regardless of
whether such telehealth services are specifically related to the diagnosis
and treatment of COVID-19.
- OCR indicated that providers can use certain non-public-facing remote
technologies for telehealth services. In the March 17, 2020, notification, OCR stated that providers who
furnish telehealth services must use non-public-facing audio and video telecommunication technologies with patients, such
as Apple FaceTime, Facebook Messenger video chat, Google Hangouts video or
Skype. Providers should not use public-facing
telecommunication technologies — such as Facebook Live, Twitch or TikTok —
to communicate with patients, as communications on these social platforms
are shared widely and are not person-to-person only. OCR encouraged all
telehealth providers to use the most secure technology available and to
enter into proper business associate agreements with technology vendors
whenever possible. However, consistent with its exercise of enforcement
discretion, OCR emphasized that it will not impose penalties against
covered healthcare providers for the lack of a business associate agreement
with video communication vendors. OCR recommended that providers notify
patients that any unapproved third-party applications potentially introduce
privacy risks, and suggested that providers enable all available encryption
and privacy modes when using such applications. More information about the
OCR’s announcement on remote communications for telehealth services can be
found
here.
- OIG issued a policy statement on forgoing sanctions for reducing or
waiving Medicare beneficiaries’ cost-sharing obligations. On March 17, 2020, the HHS Office of Inspector General (OIG) issued a
policy statement notifying healthcare providers that it would not enforce administrative
sanctions on providers who reduce or waive Medicare beneficiaries’
cost-sharing obligations (i.e., co-payments and deductibles) for telehealth
services furnished during the COVID-19 outbreak.
CMS recommends that providers inform their Medicare patients that
telehealth services are available. The above summary relates to the
provision and reimbursement of telehealth services furnished to Medicare
beneficiaries, but information as to reimbursement for telehealth services
by state Medicaid programs and commercial payors is still outstanding.
However, CMS notes in its
telehealth FAQ sheet
that “[s]tates have broad flexibility to cover telehealth through Medicaid”
and that “[n]o federal approval is needed for state Medicaid programs to
reimburse providers for telehealth services in the same manner or at the
same rate that states pay for face-to-face services.”
Various federal government agencies, including CMS, continue to release and
publish guidance and waivers in connection with the nation’s COVID-19
response. As the COVID-19 situation continues to evolve, CMS encourages all
providers to monitor the Centers for Disease Control and Prevention website
for up-to-date information and resources and to contact local health
departments when needed.
Please contact the authors of this alert with any questions and for
additional guidance on how other COVID-19 considerations may impact
healthcare providers. McGuireWoods has published
additional thought leadership related to how companies across various
industries can address crucial COVID-19-related business and legal issues.