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Medicare Telehealth Services

On March 6, Congress passed the Coronavirus Supplemental Appropriations Act (H.R. 6074), which included a $500 million authorization to enhance telehealth services. The legislation gives the U.S. Department of Health and Human Services (HHS) Secretary the authority to waive or modify certain telehealth Medicare requirements when the president has declared a National Emergency, or the HHS Secretary has declared a public health emergency.

On March 27, 2020, Congress passed the third stimulus bil, the Coronavirus Aid, Relief, and Economic Security Act, (CARES/ H.R. 748) that further expanded access to telehealth and reauthorized the Health Resources and Services Administration (HRSA’s) Telehealth Resource Centers grant program at $29 million a year for fiscal years 2021-2025.  Notably, they opened up the grant program to for-profit organizations in addition to nonprofits. 

All of these policies attempt to increase access to telehealth services while reducing the need for in-person visits during this public health emergency. They also give providers mechanisms to continue treating patients while their typical face-to-face caseload is diminished. These temporary changes could serve as a valuable case study and potentially lead to permanent changes.

The following requirements for billing Medicare telehealth services are waived during the coronavirus (COVID-19) public health emergency:

  • Geographic restrictions. Qualified providers are permitted to furnish telehealth services to patients located in any geographic area (e.g., both non-rural and non-health professional shortage areas (HPSAs)).
  • Originating site restrictions. Qualified providers are permitted to furnish services to patients in their homes.
  • Telephone restrictions. Telehealth services can be furnished via telephone or other qualifying devices so long as the device has both audio and video capabilities. However, the HHS Office for Civil Rights (OCR) will exercise enforcement discretion and waive penalties for HIPAA violations against healthcare providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype. Further, the CARES Act removed the definition of telehealth under the waiver as real-time audio/visual technology, allowing the secretary of HHS to give flexibility to providers to use audio-only telehealth. Accordingly, we expect to see guidance waiving these additional requirements.
  • Allows Federally Qualified Health Centers (FQHC) and Rural Health Clinics (RHC) to furnish telehealth services in Medicare. During the COVID-19 emergency period, FQHCs and RHCs can serve as distant sites for telehealth consultations and therefore deliver telehealth services. The legislation will reimburse FQHCs and RHCs at a rate that is similar to payment for comparable telehealth services under the Medicare physician fee schedule (MPFS).

On March 17, the Centers for Medicare & Medicaid Services (CMS) released guidance to assist healthcare providers in implementing these new waivers.

In addition to the above-listed restrictions,

  • reimbursement is allowed for any telehealth-covered code, even if unrelated to COVID-19 diagnosis, screening or treatment.
  • the list of telehealth services under the MPFS for the Fiscal Year (FY) 2020 may be found here. Notably, Medicare Chronic Care Management (CCM) and Remote Patient Monitoring (RPM) are a series of services that utilize telehealth technologies but are not explicitly labeled “telehealth” by CMS. Not called “telehealth,” these services would not be limited by the restrictions in law placed on reimbursement for telehealth-delivered services in the Medicare program.  
  • the established relationship requirement codified in H.R. 6074 will not be enforced and was removed in the CARES Act. H.R. 6074 implemented an “established patient” requirement for telehealth services furnished pursuant to any new waivers. This would have required that patients be seen by the provider furnishing telehealth services, or provider in the same group practice, within three years and had services billed under Medicare. CMS guidance clarified that it would not enforce this requirement, meaning that patients need not been billed under Medicare in the past three years by the provider or practice.  Notably, the CARES Act removed the COVID-19 telehealth waiver requirement that a provider must have seen the patient within the last three years (which CMS has already stated they would not enforce).
  • to deliver telehealth services, a clinician must still be a Medicare “qualified provider.” The initial waiver did not expand the list of eligible providers to provide services and be reimbursed. However, the CARES Act allows flexibility to open the waiver to additional providers. We may see additional guidance from HHS expanding the eligible provider list. 
  • The eligible providers are:
    • physicians
    • nurse practitioners
    • physician assistants
    • nurse midwives
    • clinical nurse specialists
    • certified registered nurse anesthetists
    • clinical psychologists (CP)
    • clinical social workers (CSWs) (NOTE: CPs and CSWs cannot bill Medicare for psychiatric diagnostic interview examinations with medical services or medical evaluation and management services. They cannot bill or get paid for current procedural terminology (CPT) codes 90792, 90833, 90836 and 90838).
    • Registered dietitians or nutrition professionals
  • cost-sharing still applies for telehealth visits paid by federal healthcare programs, but the Office of the Inspector General (OIG) is providing providers the flexibility to reduce or waive fees.
  • CMS waived reimbursement restrictions on practicing across state lines, but state licensure requirements still apply. Many states are taking action to ease these requirements.
  • in addition to the expanded telehealth services under the waivers, providers can still provide other telemedicine services, including Virtual Check-ins (G2012) and Store and Forward Technology (G2010). These codes are also only available for established patients, are patient-initiated and cannot result from or lead to an evaluation and management service.

The CARES Act also:

  • amends 42 CFR Part 2, which governs the sharing of substance use disorder treatment patient records; allowing for one-time consent to be given for future sharing of information
  • allows high-deductible health plans with health savings accounts (HSAs) to cover telehealth services prior to a patient reaching the deductible
  • during the COVID-19 public health emergency period telehealth can be used to fulfill the hospice face-to-face recertification requirements
  • allows the Veterans Affairs Secretary to enter into short-term agreements or contracts with telecommunications companies to provide temporary, complimentary, or subsidized, fixed, and mobile broadband services for the purposes of providing expanded mental health services to isolated veterans through telehealth or VA Video Connect during the public health emergency

Medicaid Telehealth Services

A Medicaid FAQ was issued stating that state Medicaid programs have broad authority to utilize telehealth within their Medicaid programs, including telehealth or telephonic consultations in place of typical face-to-face requirements when certain conditions are met. As a result, access to and reimbursement of telehealth varies by state. CMS encouraged states to use this flexibility to increase the use of telehealth and provided further guidance and clarification in relation to state coverage:

  • no federal approval is necessary 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
  • a state plan amendment would be necessary to accommodate any revisions to payment methodologies to account for telehealth costs

Notably, on March 24, HHS Secretary Alex Azar sent guidance and a letter to all 50 governors urging them to suspend state regulatory barriers to practice that limit patient access to care. The guidance indicates that, at least at present, the secretary does not have the authority to override state law. In the guidance, the secretary notes that while he may waive requirements related to Medicare, Medicaid, and CHIP Program reimbursement, “health care providers must still comply with various state laws and requirements.” 

For a list of licensure waivers by state from the Federation of State Medical Boards (FSMB), click here.

Commercial Payors

Several health plans have announced that they will make telehealth more widely available or offering telehealth services for free for a certain period. Some of the announcements have come from AetnaCigna and BlueShield BlueCross.

HIPAA Enforcement

On March 17, OCR issued guidance that loosens restrictions for healthcare professionals.

  • OCR will waive potential HIPAA penalties for good faith use of telehealth during the nationwide public health emergency due to COVID-19.
  • A covered healthcare professional that wants to use audio or video communication technology to provide telehealth to patients during the COVID-19 emergency can use any non-public-facing remote communication product that is available to communicate with patients and provide telehealth in good faith without the risk that OCR might impose penalties for noncompliance with the HIPAA rules.
  • This exercise of discretion applies to telehealth provided for any reason, not only the diagnosis and treatment of COVID-19-related health conditions.

OIG Enforcement

On March 17, the HHS Office of Inspector General (OIG) issued guidance that provides flexibility during this national emergency. Specifically, physicians and other practitioners will not be subject to administrative sanctions for reducing or waiving any cost-sharing obligations federal healthcare program beneficiaries may owe for telehealth services furnished during the national emergency.

DEA Enforcement

The Drug Enforcement Administration (DEA) released guidance allowing DEA-registered providers to issue prescriptions for controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all of the following conditions are met:

  • the prescription is issued for a legitimate medical purpose by a provider acting in the usual course of her professional practice
  • the telehealth communication is conducted using an audio-visual, real-time, two-way interactive communication system
  • the provider acts under applicable federal and state law

The provider may issue a prescription electronically (for schedules II-V) or by calling in an emergency schedule II-V prescription to the pharmacy.

Resources

  • CMS has released FAQs outlining the new Medicare telehealth waiver.
  • CMS released Medicaid fee-for-service telehealth guidance.
  • OCR released a Notification of Enforcement Discretion for telehealth remote communications during the COVID-19 nationwide public health emergency.
  • OCR also released guidance on HIPAA.
  • The DEA released a clarification noting that healthcare professionals can now prescribe a controlled substance to a patient using telehealth technology.
  • A list of Licensure Waivers from the Federation of State Medical Boards (FSMB)
  • American Medical Association (AMA) Guide on Coding and Payment

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