On March 17 the Trump Administration announced expanded reimbursement for clinicians providing telehealth services for Medicare beneficiaries during the COVID-19 Public Health Emergency. The Centers for Medicare and Medicaid Services (CMS) published an announcement, a fact sheet and Frequently Asked Questions.  To further facilitate telehealth services, the Office for Civil Rights (OCR) issued a notification describing certain technologies that would be permitted to be used for telehealth without being subject to penalties under the Health Insurance Portability and Accountability Act regulations (HIPAA). In addition, the Office of Inspector General (OIG) announced it will allow healthcare providers to reduce or waive cost-sharing for telehealth visits.

Temporary Expansion for Medicare Telehealth Services

The CMS fact sheet states that for the duration the COVID-19 Public Health Emergency, beginning retroactively on March 6, 2020:

• Medicare will consider telehealth visits the same as in-person visits and reimburse at the same rate as regular, in-person visits;
• Payment will be made for professional services furnished to beneficiaries via telehealth in all areas of the country in all settings;
• Payment will be made for the telehealth services furnished to beneficiaries in any healthcare facility as well as in their home;
• Patients and their health care providers will be able to use a range of communication tools, including telephones with audio and video capabilities; and
• Telehealth services will be paid under the Physician Fee Schedule at the same amount as in-person services.

CMS also noted that while coinsurance and deductibles still apply for telehealth services, the OIG issued a policy statement that provides flexibility, see below. Other virtual services currently reimbursed by CMS are not affected by the expanded telehealth reimbursement.  These include virtual check-ins and e-visits.  The CMS fact sheet discusses some of the differences between these various methodologies, their reimbursement and how they differ from telehealth.

Medicaid

Regarding Medicaid, CMS stressed that no federal approval is needed 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. Further, states may cover Medicaid telehealth services using telephonic, video technology commonly available on smart phones and other devices. CMS issued policy guidance for the states on this.

OCR Notification on Telehealth Communication Technologies

In a notification that followed the Administration’s announcement, the OCR stated it will exercise enforcement discretion and waive penalties for HIPAA violations during the COVID-19 public health emergency for the good faith use of remote communications technologies that may not fully comply with HIPAA.  The OCR mentioned that video chat technologies could be used, such as Apple FaceTime, Facebook Messenger, Google Hangouts, or Skype. However, the OCR encouraged providers to notify patients that these applications potentially introduce privacy risks, and that all available encryption and privacy modes should be utilized.

The OCR also cautioned that the following public-facing technologies should not be used:  Facebook Live, Twitch, TikTok, and similar applications. The OCR encouraged health care providers seeking additional privacy protections to use vendors that are HIPAA compliant and will enter into business associate agreements (BAAs). However, the OCR indicated it would not impose penalties for the lack of a BAA or other HIPAA noncompliance that relates to the good faith provision of telehealth services during this public health emergency.

Below are the names of vendors that OCR provided which represent themselves as HIPAA compliant, although the OCR also cautioned they were not being endorsed:

• Skype for Business
• Updox
• VSee
• Zoom for Healthcare
• me
• Google G Suite Hangouts Meet

OIG Policy Statement

The OIG issued a policy statement, announcing that waivers of cost sharing amounts owed by Federal health care program beneficiaries would be allowed during the COVID-19 Public Health Emergency, if both of the following conditions are satisfied:

• a physician or other practitioner reduces or waives cost-sharing obligations (i.e., coinsurance and deductibles) that a beneficiary may owe for telehealth services furnished consistent with the then-applicable coverage and payment rules; and
• the telehealth services are furnished during the COVID-19 Public Health Emergency.

The OIG’s policy statement also emphasized that it was not requiring physicians or other practitioners to reduce or waive any cost-sharing obligations during this time period. Further,  the OIG will not view the furnishing of any free telehealth services during the public health emergency (without more) as a beneficiary inducement for subsequent services.

The OIG also reminded providers that CMS’s rules and regulations would still need to be followed, as well as the responsibility of providers to bill only for services performed and comply with legal authorities related to proper billing, claims submission, cost reporting, or related conduct.

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