In response to the COVID-19 pandemic, the Centers for Medicare & Medicaid Services (CMS) has significantly expanded access to telehealth services for Medicare beneficiaries.
Consistent with Section 1135 of the Social Security Act and the Coronavirus Preparedness and Response Supplemental Appropriations Act, CMS issued a waiver providing that, effective for services starting March 6, 2020, Medicare coverage will now include three types of virtual services: Medicare telehealth visits, virtual check-ins, and e-visits.
Although Medicare reimbursement was previously limited primarily to check-ins or on-site care in rural areas, Medicare will now pay for virtual services at the same rate as regular, in-person visits. The waiver extends telehealth services to all Medicare beneficiaries, regardless of whether the visit is related to COVID-19. In addition, the HHS Office for Civil Rights (OCR) has announced that it will waive penalties for HIPAA violations against providers acting in good-faith to serve patients through everyday communication technologies, such as FaceTime or Skype.
“As we continue to learn about the COVID-19 virus, it’s important for all Americans, and particularly vulnerable populations who are at heightened risk, to be able to access their providers when they feel sick or have questions,” said CMS Administrator Seema Verma. “Over the last three years, President Trump’s leadership and historic efforts have made it possible for doctors to bill for their time on the phone or video chat with patients to help triage medical issues. Today, a patient who is not feeling well can call their doctor to decide whether or not they need to go in for a visit, offering solutions and peace of mind immediately.”
On March 17, CMS released the Medicare Telehealth Frequently Asked Questions (FAQs). Question #4 of the FAQs discusses which services can be provided by telehealth and has a link to a list of the various codes that are reimbursable under the current waivers, which include the Complaint List of Medicare Telehealth and the Medicare Telehealth Code List for 2019-2020. Most of the standard office visit codes are in the lists.
Notably, the response to Question #4 states: “Under the emergency declaration and waivers, these services may be provided to patients by professionals regardless of patient location.” In essence, telehealth visits pursuant to the waiver are considered the same as in-person visits by CMS and will be paid at the same rate as regular, in-person visits. That said, the FAQs do not address the requirement for a physical examination of the patient. As of the date of this publication, there have not been announcements addressing any waiver of this requirement, nor has there been any detailed information about how theses current changes impact billing requirements.
One of telemedicine’s most basic assumptions is that there will be a quality electronic exchange of diagnostic information, not just a phone or video call. As a result, telemedicine requires that there be a remote physical exam, typically involving diagnostic equipment on the patient’s end of the video that would allow the patient to have his or her temperature, blood pressure, blood-oxygen levels, heart rate, etc., checked and sent to the provider electronically.
The Telehealth Services During Certain Emergency Periods Act of 2020 (TSDCEPA) was among the recent pieces of federal legislation that was passed to ease restrictions on telehealth. Although TSDCEPA expressly allows the use of a smartphone for telemedicine, it is silent about whether or not the physical examination requirement is waived. The safe assumption, as of now, is that the physical examination requirement is not waived because the legislation requires the use of a smartphone, which comprises both audio and video capabilities, rather than just any phone and mobile device. OCR has issued detailed guidance on the types of permissible video platforms for telehealth services.
One issue of potential scrutiny in regard to a remote physical examination is whether there was enough of a physical examination to support an appropriate medical decision. That said, with a thorough examination through a permitted video platform, physicians can, arguably, observe the patient just as well in the telehealth environment. Physicians can assess skin tone, rate of breathing, gait, clarity of speech, etc., as well as observe whether they are sitting up or lying in bed, whether their breathing appears rapid, whether they are able to complete full sentences, and whether they are walking around without distress while listing their symptoms. Patients can also follow instructions to aid in their own examination—physicians can have them move their joints, assess if they have pain in specific areas, move the camera to see their eyes, throat, skin rashes, etc. Additionally, patients can take their own temperature or pulse while the doctor times them (or maybe even use a FitBit, Garmin, or other device that will track the patient’s heart rate). Family members can also be recruited: they can examine an abdomen and assess for tenderness under the doctor’s instructions.
Equally as important, if not more, is that the physician must methodically document the remote physical examination. In this current environment, it is not advisable to simply state the patient’s vital signs; instead, the physician should document in detail how the vital signs were taken. The more information about this process that is recorded in the chart, the better the claim will withstand scrutiny after the fact. The physician should also explain in detail the reason for the telemedicine visit—for example, if the patient was self-quarantined or avoiding an in-person visit per national recommendations, was complaining of fever, cough, etc., used the patient’s own thermometer, FitBit, or other equipment, and so forth.
Doctors should be conservative in their billing in most instances, especially if the visit involves a patient that is worried about COVID-19 and few symptoms are observed. Only in the cases where the doctor can legitimately determine and document the required systems and symptoms should the doctor bill the higher level of service. For example, ideally, the doctor should feel like a 99213 would be a no brainer if the patient presented personally and the doctor has documented the visit extensively and has verifiable physical examination data. All providers must avoid being seen as money grabbers in these circumstances. The argument two years from now if an audit attempts to recoupment the payments CMS will say the doctors at least got paid something for the patient visit when under normal circumstances the doctor would not have been able to charge for the visit and not be paid anything. As a result, the safer course of action is to bill conservatively.
Although the 1135 waiver applies only to Medicare beneficiaries, private payors may follow suit: “Blue Cross Blue Shield Association (BCBSA) announced that its network of 36 independent and locally-operated Blue Cross and Blue Shield (BCBS) companies will expand access to telehealth and nurse/provider hotlines. According to BCBS, given the nature of the COVID-19 outbreak, seeking in-person medical care may lead to further spreading of the virus. BCBS companies will encourage the use of virtual care and will also facilitate member access and use of nurse/provider hotlines.”
Importantly, the 1135 waiver does not impact state medical licensure requirements. Some states, including Arizona, California, Florida, Louisiana, Mississippi, North Carolina, Tennessee, Texas, and Washington, have temporarily relaxed licensing requirements, to some extent or another, during the state of emergency. This list will likely continue to grow in the coming days. Even in such states, however, it will be important to read the fine print to determine the manner and extent to which the licensing requirements have been relaxed.
The waiver for telehealth services will remain in place for the duration of the public health emergency. As telehealth shows its worth during this challenging time, it is certainly possible that the temporary removal of regulatory barriers may lead to permanent, fundamental changes in how providers are permitted to provide routine care.
Stay up to date by monitoring the latest COVID-19 resources on our CORONAVIRUS RESOURCE CENTER.
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