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Thursday, November 7, 2019

A bipartisan group of senators introduced legislation on October 30th designed to expand Medicare beneficiaries’ access to telehealth services. The bill is called the Creating Opportunities Now for Necessary and Effective Care Technologies for Health Act of 2019 (hereinafter, the “CONNECT Act” or the “Act”). In order to understand what the Act seeks to accomplish, it is important to have a working understanding of Medicare’s current policies governing telehealth. A brief overview is provided below followed by a section by section summary of the Act.

I. Understanding Medicare’s Current Coverage of Telehealth Services

a. Covered Telehealth Services under Medicare

Currently, Medicare’s coverage of telehealth services includes office visits, psychotherapy, consultations, and certain other medical or health services that are provided by an eligible provider who is not physically located at the Medicare beneficiary’s location using an interactive 2-way telecommunications system (e.g., real-time audio and video).

The specific telehealth-delivered services eligible for reimbursement under Medicare are identified by Current Procedural Terminology (“CPT”) or Healthcare Common Procedure Coding System (“HCPCS”) codes. Each year, the U.S. Department of Health and Human Services (“HHS”) considers submissions for new telehealth-delivered services to be approved. Submissions are allowed from providers, advocacy organizations, and other interested parties.

CMS will decide to approve a submitted CPT code for reimbursement based on whether the service meets the requirements in one of two categories:

  • Category 1Services are similar to existing services, such as professional consultations, office visits, and office psychiatry services, which already are approved for telehealth delivery. In deciding whether to approve the new codes, similarities between the requested and existing telehealth services are examined, including interactions among the beneficiary and the practitioner at the distant site and, if necessary, the telepresenter, and similarities in the technologies used to deliver the proposed service.
  • Category 2:  Services not similar to Medicare-approved telehealth services. Reviews of these requests include an assessment of whether the service is accurately described by the corresponding CPT code when delivered via telehealth, and whether the use of technology to deliver the service produces a demonstrated clinical benefit to the patient.

CMS maintains a list of current CPT codes eligible for Medicare reimbursement for CY 2019. Newly approved services typically become eligible for reimbursement on January 1 of the following year.

b. Geographic Limitations on Telehealth Services under Medicare

Medicare beneficiaries may only access telehealth services under Medicare if they are located in (i) a county that is outside a Metropolitan Statistical Area (MSA); or (ii) a rural Health Professional Shortage Area (HPSA) in a rural census tract. These limitations generally serve to limit Medicare’s telehealth services to those beneficiaries who are located in rural parts of the country.

c. Requirements for Originating Sites under Medicare           

Telehealth services are only available under Medicare if the beneficiary is located at one of these places (known as “originating sites”):

  • A doctor’s office
  • A hospital
  • A critical access hospital (“CAH”)
  • Rural health clinic
  • Federally qualified health center
  • A hospital-based dialysis facility
  • A skilled nursing facility
  • A community mental health center
  • An individual’s home if the individual is receiving treatment of a substance use disorder or a co-occurring mental health disorder
  • Renal dialysis facilities
  • Homes of beneficiaries with End-Stage Renal Disease (“ESRD”) getting home dialysis
  • Mobile stroke units

II. Summary of the CONNECT Act’s Provisions

The CONNECT Act would make the following changes in an effort to expand the availability of telehealth services to beneficiaries.

a. Expand Use of Telehealth through the Waiver of Certain Requirements

Pursuant to Section 3 of the Act, beginning in 2021, the CONNECT Act would grant the Secretary HHS the authority to waive restrictions applicable to payment for telehealth services, including originating site restrictions, geographic limitations, limitations on the types of technologies to be used, limitations on provider type, and limitations on the types of services rendered.

However, use of the waiver is only permitted if it is expected to reduce spending without reducing quality of care or denying/limiting coverage to beneficiaries. In addition, the waiver must apply to services provided in high-need, health professional shortage areas.

b. Expand Use of Telehealth for Mental Health Services

Section 4 of the Act would remove the geographic restrictions currently applicable to use of telehealth for mental health services and would add the home as an originating site for mental health services.

c. Use of Telehealth in Emergency Medical Care.

Section 5 of the Act would remove the geographic restrictions currently applicable to certain originating sites for emergency medical care services.

d. Improvements to the Process for Adding Telehealth Services.

Section 6 of the Act would require CMS’ process for adding telehealth services, as described above, to better consider how telehealth can improve access to care. It would also provide clarification on what requests to add telehealth services under such process should include.

e. Rural Health Clinics and Federally Qualified Health Centers

Section 7 of the Act removes the geographic restrictions currently applicable to federally qualified health centers (“FQHCs”) and rural health clinics (“RHCs”) and allows FQHCs and RHCs to furnish telehealth services as distant sites.

f. Native American Health Facilities

Section 8 of the Act would removes the geographic and originating site restrictions currently applicable to facilities of the Indian Health Service or Native Hawaiian Health Care Systems.

g. Waiver of Telehealth Restrictions During National Emergencies

Section 9 of the Act would allow for the waiver of telehealth restrictions during national and public health emergencies.

h. Use of Telehealth in Recertification for Hospice Care

Section 10 of the Act would allow for the use of telehealth in the recertification of a beneficiary for the hospice benefit.

i. Clarification for Fraud and Abuse Laws

Section 11 would clarify that the provision of technologies to a Medicare beneficiary for the purpose of furnishing services using technology is not considered “remuneration” under fraud and abuse laws

j. Other Provisions

Section 12 of the Act would require MedPAC to study how different payers cover the home as an originating site and what services would be suitable for the home to be an originating site under Medicare. Section 13 of the Act would require an analysis of the impact of telehealth waivers in CMS Innovation Center models. Section 14 of the act would authorize a model to test allowing additional health professionals to furnish telehealth services And, finally, Section 15 of the Act would encourage the CMS Innovation Center to test telehealth models in Medicare.

The CONNECT Act is accompanied by companion legislation in the House of Representatives. Both the Senate and House bills have bipartisan support. Given that 2019 saw several CMS implement several expansions to Medicare’s coverage of telehealth services, there appears to be a significant amount of forward momentum behind telehealth right now. Whether the CONNECT Act will make it through Congress and be signed into law is unclear. But the odds are good that Medicare beneficiaries’ and others’ access to telehealth services is likely to continue to increase if not through legislation than through regulatory means. We will continue to monitor the progress of the Act and report on any developments in the future. Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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