As part of the first COVID-19 legislative package, President Trump signed into law the “Telehealth Services During Certain Emergency Periods Act of 2020.” This particular legislation allows the HHS Secretary to lift certain constraints on Medicare payments for qualifying telehealth services in those geographic areas where a COVID-19 emergency has been declared.
The intent of these waivers is to permit beneficiaries to more freely consult their providers, avoiding hospital and physician offices where they might risk exposure to the virus. Similarly, the use of telehealth through these waivers may assist providers in reducing transmission and keeping hospitals open for higher-risk patients.
On March 17, 2020, the president and CMS not only announced implementation of these waivers but also significantly expanded upon these waivers, in part, by indicating that certain attendant limitations would not be enforced. A copy of the CMS Fact Sheet released this afternoon may be found here.
The original legislative waiver authority, as now implemented, includes the following:
- Geographic Restriction. Medicare payment for qualifying telehealth services is traditionally limited to patients who are located in designated rural areas at the time they receive the service. This restriction has now been waived such that patients in any geographic area, including urban areas, may receive qualifying telehealth services.
- Site Restriction. In addition to the geographic restriction, the location requirement for telehealth services has been waived. Patients receiving telehealth services must typically be located in one of several designated locations when they receive the service. These locations include hospitals, critical access hospitals, physician offices, FQHCs, rural health clinics and other designated sites. With implementation of the waiver, beneficiaries may now receive eligible telehealth services in their home, which is generally not allowed.
- Telephone Restriction. Federal regulation prohibits the use of “telephones” to facilitate telehealth services. HHS has now waived this restriction, such that “smart phones” with both audio and video capability may be used to conduct eligible telehealth encounters – as long as the audio and video capability is used to facilitate a “two-way, real-time interactive communication” between the provider and the patient.
The announcement today clarifies the application of the waiver to Medicare telehealth services, and it also discusses existing virtual care options such as virtual check-ins and e-visits. CMS addresses each of these virtual care models in the Fact Sheet and includes a chart identifying the three types of services with representative HCPCS/CPT codes. Importantly, the codes for “Medicare Telehealth Visits,” which include office visit E/M codes, will now be available to providers previously limited by the geographic and site restrictions. Medicare pays the same amount for telehealth services as it would if the services were furnished in person. Billing and related information can be found in the Medicare Telehealth FAQ.
An OIG Policy Statement may be found here related to the waiver of telehealth copays and deductibles. The policy statement “notifies physicians and other practitioners that they will not be subject to administrative sanctions for reducing or waiving any cost-sharing obligations Federal health care program beneficiaries may owe for telehealth services furnished consistent with the then-applicable coverage and payment rules.” The telehealth services must be furnished during the time period subject to the COVID-19 Federal Emergency Declaration.
Note, nothing in the policy statement requires a practitioner to reduce or waive beneficiary cost‑sharing obligations. Further, nothing in the policy statement otherwise affects a practitioner’s responsibility to bill only for services performed and to comply with legal authorities related to proper billing, claims submission, cost reporting or related conduct. Finally, nothing in the policy statement affects a practitioner’s responsibility to comply with federal, state or local statute, rule, regulation, ordinance or other law that may be applicable at the time.
Additionally, the president and CMS affirmed that certain limitations associated with these waivers would not be enforced.
- Pre-Existing Patient-Provider Relationship. HHS will not enforce through audit the requirement that a pre-existing patient relationship be in place to take advantage of the waiver. The legislation requires that a physician or other eligible practitioner (or other such provider in the same medical practice, as determined by tax identification number) have personally treated the patient through Medicare paid services at some point during the prior three-year period. Today’s announcement commits that: “To the extent the waiver (section 1135(g)(3)) requires that the patient have a prior established relationship with a particular practitioner, HHS will not conduct audits to ensure that such a prior relationship existed for claims submitted during this public health emergency.” While encouraging, what HHS or other federal enforcement agencies would do with information about the absence of a pre-existing relationship brought to its attention by others remains unsettled.
- HIPAA/Technology Requirements. Although the legislation allows for the use of smartphones (with audio/video capability) to facilitate eligible telehealth encounters, these waivers have not addressed the more general HIPAA/security requirements applicable to telemedicine technology. Here too, CMS indicates there will be a lack of enforcement. The announcement states, “Effective immediately, the HHS Office for Civil Rights (OCR) will exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency.[1]“
Practical Takeaways
The Medicare waivers and related audit reductions represent a significant step forward in permitting the use of virtual care services to combat COVID-19. Importantly though, hospitals and health care providers should be mindful that these measures are specific to Medicare coverage, and all of the technical coding and claims submission requirements for payment remain, for both the telehealth services and virtual e-visits and check-ins. These waivers do not alter jurisdiction-specific requirements that telemedicine providers be licensed in the state or jurisdiction where the patient is located, nor do they alter jurisdiction-specific professional conduct or prescription requirements.
Accordingly, health care providers should be mindful of these jurisdiction-specific requirements while utilizing telehealth to navigate the COVID-19 crisis and may need to additionally consider any jurisdiction-specific waivers that may be in place.
If you have additional questions, please contact:
- Chris Eades at (317) 977-1460 or ceades@wp.hallrender.com;
- Scott Geboy at (414) 721-0451 or sgeboy@wp.hallrender.com;
- Mike Batt at (317) 977-1417 or mbatt@wp.hallrender.com;
- Regan Tankersley at (317) 977-1445 or rtankersley@wp.hallrender.com;
- Tara Kepler at (303) 802-1293 or tkepler@wp.hallrender.com;
- Abby Kaericher at (202) 780-2989 or akaericher@wp.hallrender.com; or
- Your regular Hall Render attorney.
[1] For more information: https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/index.html