CARES Act waivers from CMS provide additional flexibility for telehealth services and relief from certain Stark Law liabilities (United States)

On March 27, 2020, Congress passed, and President Trump signed, the $2 trillion Coronavirus Aid, Relief and Economic Security Act (CARES Act)stimulus package aimed at addressing the coronavirus disease 2019 (COVID-19) pandemic.  Pursuant to new authority granted under the CARES Act, the Centers for Medicare and Medicaid Services (CMS) on March 30 released additional waivers further relaxing Medicare coverage and payment rules for telehealth services as well as other Medicare coverage rules. This latest relief further expands healthcare practitioners’ ability to reach patients through telehealth, an important tool for addressing patient needs while reducing in-person contact to slow the spread of COVID-19.

As we noted in a prior alert, Congress’s first major COVID-19 response package included new authority for the Secretary of Health and Human Services (HHS) to waive some of the intense restrictions that generally apply to Medicare funding for telehealth services, and the CMS eventually exercised that authority.  Prior to the CARES Act, however, coverage restrictions remained in place that presented potentially significant barriers to the crucial task of getting remote care to the 44 million Americans on Medicare − including elderly people, people with disabilities, and others who may be especially vulnerable to life-threatening cases of COVID-19. 

With the CARES Act, Congress has further broadened CMS’s authority to cover telehealth services for the duration of the COVID-19 emergency.  Where the previous legislation authorized temporary relaxation of only certain portions of the “telehealth services” definition at Social Security Act Section 1834(m), now Section 4405 of the CARES Act extends HHS’s waiver authority to cover the entire definition, including the authority to waive restrictions for originating sites, geography, eligible practitioners, eligible services, and qualifying technology.  In addition, the definition now contains an emergency provision permitting additional payments to rural health centers and federally qualified health centers. 

CMS’s newly announced waiver takes immediate advantage of the additional statutory flexibility by specifying (at the billing code level) various critical services that may now be provided via telehealth.  The blanket waiver also:

• permits virtual “check-ins” for new patients, rather than just established patients;
• allows additional health professions, such as occupational therapy, to take advantage of virtual check-in capabilities;
• increases how many times per day or per month certain telehealth codes may be used;
• allows remote patient monitoring care management codes to apply to additional scenarios without multiple disease diagnoses;
• relaxes face-to-face evaluation rules for dialysis patients; and
• modifies rules for billing physicians’ supervision of other clinicians, among other substantial changes. 

For example, prior to March 30, providers were limited in their use of nursing facility subsequent care codes (CPT codes 99307-99310) for services provided through telehealth to no more than once per month. This restriction has now been lifted, allowing Medicare beneficiaries residing in nursing facilities to receive an unlimited number of medically necessary services through telehealth, thereby reducing further COVID-19 exposure to both facility residents and the health care providers caring for them. Providers can also waive patient copayments for Medicare fee-for-service patients seeking care through telehealth.

Even the famously rigid physician self-referral law or Stark Law, which sharply constrains financial arrangements between referring physicians and entities providing certain Medicare-covered designated health services, is the subject of significant new flexibilities, including the ability for certain practitioners and facilities to charge either above- or below-market rent and make unconventional zero-interest loans to each other.  (Given the significant penalties associated with Stark Law noncompliance, the industry is encouraged to approach these new emergency permissions carefully and with the assistance of experienced counsel.)

Other provisions of the CARES Act touching on telehealth include Section 4213, which authorizes $29 million in grant funding per year for five years to support telehealth infrastructure development and telehealth service demonstration projects; and Section 4401, which authorizes health insurers to waive members’ cost-sharing obligations for telehealth services without jeopardizing their plans’ ability to qualify for high-deductible tax treatment.

In order to increase cash flow to providers impacted by COVID-19, CMS has also expanded the Accelerated and Advance Payment Program to provide necessary funds when there is a disruption in claims submission and/or claims processing. CMS is authorized to provide accelerated or advance payments during the period of the public health emergency to any Medicare provider/supplier who submits a request to the appropriate Medicare Administrative Contractor (MAC) and meets the required qualifications. MACs will provide the approve funds within seven calendar days of receiving the request. While repayment of these advance/accelerated payments has historically began at 90 days, CMS has extended the repayment of these accelerated/advance payments to begin 120 days after the date of issuance of the payment.