In the past few days, there have been significant actions impacting federal telehealth policy.  The $2 trillion relief package, HR 748, the Coronavirus Aid Relief, and Economic Security Act or “CARES Act”, was signed into law and the Centers for Medicare and Medicaid Services (CMS) has issued updates regarding the use of telehealth in Medicare. 

HR 748 CARES Act
Federally Qualified Health Centers & Rural Health Clinics
Large portions of language that was placed into law by HR 6074 were removed by HR 748.  One such change was the definition of a “qualified provider” put into law by HR 6074 that indicated telehealth delivered services during this emergency could only be provided to an established patient.  HR 748 removed this provision.  This means the requirement for a pre-existing relationship prior to providing services via telehealth was removed and CMS has since clarified that telehealth can be used for both new and established patients.  Language placed into law by HR 6074 that referred to facility fees was also removed which means pre-COVID-19 policies on facility fees would apply.

Other HR 6074 language removed included the ability to use a telephone as long as it had audio and visual capabilities. By removing this language, the modality that is used to provide telehealth services under Medicare is what existed in law pre-COVID-19 which is a “telecommunications system.” This term has never been defined in statute.  It has been defined in federal regulations that explicitly says telehealth must be through an interactive audio/visual system.  As CMS is not impeded statutorily regarding the definition of “telecommunication systems,” they theoretically do have the ability to decide administratively to expand the modality used to provide telehealth to include such devices as audio-only phone.  CMS had included the use of phone for some specific codes, see below.

The definition as to what provider may provide services via telehealth under Medicare made reference back to existing statutory language with the following addition:

Under HR 748, Federally Qualified Heath Centers (FQHCs) and Rural Health Clinics (RHCs) will be allowed to act as distant site providers for reimbursable telehealth services under Medicare.  This will not be a permanent change and is only in effect during an emergency declaration.  Several other things to note:

  • The Secretary shall develop a special payment methodology to decide the amount of reimbursement the FQHC/RHC will receive when acting as the distant site provider in Medicare. This methodology will be based upon “payment rates that are similar to the national average payment rates for comparable telehealth services under the physician fee schedule.” 
  • Costs associated with telehealth delivered service will not be used to determine the payment amount for PPS/AIR.

At this time, CMS has not issued specific guidance on how it will implement these FQHC/RHC changes.

Dialysis Patients
During an emergency period, the Secretary has the power to waive the requirements that home dialysis patients receiving services via telehealth must have a monthly face-to-face, non-telehealth encounter in the first initial three months of home dialysis and after the first initial three months, at least once every three consecutive months.

During an emergency period, the Secretary may allow the use of telehealth to meet the requirement that a hospice physician or nurse practitioner must conduct a face-to-face encounter to determine continued eligibility for hospice care.

Home Health Services
The Secretary shall consider ways to encourage the use of telecommunications systems, including remote patient monitoring, to furnish home health services during an emergency period.

HR 748 included in the scope of the telehealth network grant programs substance use disorder projects as one of the subject areas for these projects.  The requirement that only a non-profit may apply for a telehealth network grant or to be a telehealth resource center was removed. This will allow for-profit companies to apply for both grants including the unbiased telehealth resource centers.  These changes do not affect current grants and will go into effect in 2021.

HR 748 will allow during this emergency short term agreements or contracts with telecommunications companies to expand fixed and mobile broadband services to expand mental health services to veterans through telehealth.

Several provisions allowing for the use of telehealth that would be activated during a public health emergency, and not only limited to the current COVID-19 crisis include:

  • For the Veterans Directed Care program, the Secretary of Veterans Affairs (VA) shall waive the requirement that an area agency on aging process new enrollments and six-month renewals through in-person or home visit and allow them to be conducted via phone or telehealth. Additionally, consent may be verbal and provided via phone or telehealth.  
  • The Secretary of the VA shall ensure that telehealth capabilities are available to case managers.

The following items also included telehealth:

  • For plan years beginning on or before December 31, 2021, a plan shall not fail to be treated as a high deductible heath plan for failing to have a deductible for telehealth or other remote care services.
  • $1 billion to Indian Health Services to respond to COVID-19 including among other things using telehealth and other information technology upgrades.
  • $27 billion to the Public Health and Social Services Emergency Fund to combat COVID-19 with “telehealth access” cited as one of the tools to be used.
  • $180 million transferred to the Health Resources and Services Administration – Rural Health to carry out among other things telehealth and rural health activities.

CMS issued a series of updates to their telehealth policies.  There were a number of changes made, but some of the highlights include:

  • Addition of more services that may be provided via telehealth including Emergency Department Visits, Levels 1-5 (CPT codes 99281-99285) and initial hospital care and hospital discharge day management (CPT codes 99221-99223; CPT codes 99238-99239).
  • Expansion of services that may be provided by phone under the virtual check-in/e-visits (CPT codes 98966-98968; 99441-99443).
  • Remote patient monitoring services and the virtual check-in codes (G2010, G2012) may be provided to new and established patients.
  • Removal of frequency limitations for subsequent inpatient visit, subsequent skilled nursing facility visit and critical care consult.
  • Clarification on licensure requirements in Medicare and Medicaid.
  • Some Stark Law waivers.

The applicable CMS policy documents are Physicians and Other Clinicians: CMS Flexibilities to Fight COVID-19 and Covered Telehealth Services March 2020

CMS has also released an Interim final rule to be published in the Federal Register.  It contains some of the provisions outlined above, but also others where CMS has not issued specific guidance at the time this newsletter was being written. Among these changes include allowing FQHCs/RHCs to use more of the care management and virtual communication codes.  At this time, this information has only been found in the interim final rule.  We anticipate CMS will issue more specific guidance to these changes soon.

CCHP has updated its telehealth policies page and  fact sheet to reflect these updates.  CCHP has also updated its state legislative tracking page to reflect any state bills related to COVID-19.

We also continue tracking new information regarding state changes on our COVID-19 State Actions Page.  Please send to us any items that may be missing from the state page to  Thank you to everyone who has forwarded information to us thus far.  Using the collection of these state actions, CCHP has compiled a quick reference chart on some of the state actions related to telehealth.  This is meant to be a quick reference as there are other details related to each policy and actions that are not covered by these broad categories.  The chart does link directly to the applicable state document, however, also check CCHP’s State Action page for items not related to the ones selected for this chart.  As with other information CCHP  has been releasing, please consider this a living document and check to make sure you have the most recent version.

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