On March 6, 2020, President Trump signed H.R. 6074, the Coronavirus Preparedness and Response Supplemental Appropriations Act (the Act) into law (Public Law 116-123). The legislation, which was introduced on March 4 and swiftly passed both the House and Senate, provides $8.3 billion in emergency funding for federal agencies as well as state and local authorities to respond to the coronavirus outbreak. A portion of the funding in this Act will be used to reimburse HHS programs that the Trump Administration drew upon for the initial coronavirus response.

Specifically, the Act provides $6.5 billion to HHS. Over $3 billion of HHS’ allocation is directed to the Public Health and Social Services Emergency Fund “to prevent, prepare for, and respond to coronavirus, domestically or internationally, including the development of necessary countermeasures and vaccines, prioritizing platform-based technologies with U.S.-based manufacturing capabilities, and the purchase of vaccines, therapeutics, diagnostics, necessary medical supplies, medical surge capacity, and related administrative activities.”

Further, the Act allocates $2.2 billion to the Centers for Disease Control and Prevention, including nearly $1 billion for state and local preparedness grants, half of which must be disbursed within 30 days of enactment. Each state will receive no less than $4 million. The Act also contains appropriations to the National Institutes of Health, Food and Drug Administration, USAID, the Department of State and the Small Business Association.

In addition to spending provisions, the legislation also contains a section temporarily waiving Medicare rules with regard to telehealth services so that more beneficiaries can receive in-home care without incurring significant out-of-pocket expenses. To expand the availability of telemedicine to seniors, the Act grants certain powers to HHS to waive certain telehealth limitations. These limitations include the requirement that a telemedicine patient be located in a rural area and receive the telemedicine advice or treatment in an approved, specified location, like a hospital or physician’s office, rather than in the patient’s home. Waiving this requirement is particularly appropriate for contagious conditions; permitting seniors to receive advice in their homes may help avoid the potential for further spreading the virus.

Beneficiaries who take advantage of any temporary waiver must use a “qualified provider,” meaning a physician or practitioner who provided some covered services to the individual during the last three years or is in the same practice (as determined by tax identification number) of such a physician or practitioner. The requirement is designed to ensure that providers have a prior physician-patient relationship with beneficiaries, apparently to preclude telehealth entities from taking unfair financial advantage of the expansion (although to obtain reimbursement, providers would still need to be Medicare approved).

Perhaps as another protective measure, the Act does not permit the Secretary to waive the requirement that telehealth services be provided via asynchronous transmission. The Secretary may lift the limitation on telephone use, but only if “such telephone has audio and video capabilities that are used for two-way, real-time interactive communications.” In other words, the Secretary may not waive the requirement that the telehealth visit be through synchronous interactive video communications.

The Act only addresses the telehealth barriers that are largely unique to Medicare and only benefits Medicare beneficiaries. States will need to consider expanding coverage of telehealth to Medicaid and commercial plan members. For example, while most states have laws requiring Medicaid to reimburse for services rendered via telehealth, some do not reimburse unless the telehealth services are provided at an eligible originating site.

The full text of the Coronavirus Preparedness and Response Supplemental Appropriations Act is available here.

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