[co-authors: Erin Whaley, Kimberly Gillespie]*

Telehealth has been in existence for many years, but third-party payor limitations on reimbursement have limited its growth in hospitals and physician practices. Today’s challenges presented by the novel coronavirus are changing the perspective of federal and state public health authorities as to the benefits of telehealth in responding to COVID-19.

During this crisis, telehealth is proving itself to be uniquely positioned to assist health care professionals and the public with the treatment of nonurgent, chronic health care issues while easing the pressures facing emergency rooms and clinics. In addition, telehealth is being effectively used to prescreen individuals by health care professionals so they can better triage potential patients and reduce their exposure to individuals who may have been exposed to COVID-19 or other illnesses.

Background

For many years, Medicare’s telehealth reimbursement policies limited it to those situations where a patient received services in an “eligible originating site.” To qualify, an originating site had to be located in either a county outside a metropolitan statistical area or a rural health professional shortage area in a rural census tract. The location where the patient was receiving telehealth services also needed to be a medical facility, like a physician office, a hospital, a critical access hospital, a skilled nursing facility, or another type of medical facility. Put simply, the patient needed to be in a rural area and had to receive services in a medical facility. With the exception of patients with end-stage renal disease receiving home dialysis, patients were not able to receive telehealth services in their home.

Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020

With the passage of the Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020, Congress significantly expanded the landscape of telehealth by allocating $500 million to telehealth reimbursement and providing the Centers for Medicare and Medicaid Services (CMS) the ability to grow telehealth coverage. The new law also amended section 1135 of the Social Security Act by granting the Department of Health and Human Services (HHS) the ability to issue waivers that could remove traditional limitations on telehealth services during a national emergency.

Medicare/Medicaid Reimbursement

CMS exercised this authority on March 17, 2020 and expanded the scope of telehealth services that would be reimbursed during the COVID-19 emergency. Beginning on March 6, 2020, health care providers can bill Medicare for a broad range of telehealth services without regard to the treatment or diagnosis of the patient. Reimbursement will be paid under the Physician Fee Schedule at the same rate as in-person services. Further, Medicare beneficiaries can receive telehealth services from their home or another facility, and smartphones (and/or similar devices) can now be used to provide telehealth services provided they have two way audio/video capability in real-time.

Although this is an ever-changing area of the law, the majority of states still seem to be restricting Medicaid reimbursement for telehealth services. We will continue to monitor developments, however, as some state leaders appear to be signaling an inclination to expand telehealth services in light of the COVID-19 emergency.

Licensure

Licensure and supervision are still another matter. While the HHS 1135 waiver addresses the issue of out-of-state practitioners being able to provide services to patients in states where they are not licensed, states have been slow to open the door to this practice. The HHS 1135 waiver requires those practicing across state lines to hold an equivalent license from another state, but state law still controls in this area, and practitioners need to be particularly careful to know what position their state has taken in this regard.

Other Developments

OCR and HIPAA – The Office for Civil Rights has agreed not to impose penalties on health care providers who utilize telehealth platforms or other remote communication technology that is not fully HIPAA compliant and/or do not have an executed business associate agreement. "A covered healthcare provider that wants to use audio or video communication technology to provide telehealth to patients during the COVID-19 nationwide public health emergency can use any nonpublic facing remote communication product that is available to communicate with patients." Providers should continue to monitor state developments because these will vary and still be in effect.

OIG and Routine Reductions/Waivers of Cost-Sharing Arrangements – HHS’s Office of Inspector General announced that it will not enforce its prohibition on routine reductions or waivers of co-pays and other cost-sharing requirements if health care professionals decide to reduce or waive cost-sharing for telehealth services during the COVID-19 emergency.

DEA and Prescriptions – Drug Enforcement Administration-registered health care professionals may issue prescriptions for controlled substances to patients with whom they have not had an in-person visit. The prescription, however, must be for a legitimate medical purpose and the health care professional and the patient must have a telemedicine communication that is conducted via two-way, interactive audio-visual communication in real time. In addition, the health care professional must be acting in accordance with applicable federal and state law and in his/her normal course.

FDA and Devices – The Food and Drug Administration will allow manufacturers of certain FDA-cleared non-invasive devices to “expand the availability and capability of non-invasive remote monitoring devices to facilitate patient monitoring while reducing patient and healthcare provider contact and exposure to COVID-19 during the pandemic.” These devices can be used to measure body temperature, respiratory rate, heart rate and blood pressure.

Considerations for Providers

As demand for more intensive treatment related to COVID-19 increases, health care systems, hospitals, accountable care organizations, federally qualified health centers, and physician practices should consider implementing telehealth as part of their treatment protocols. Below, we have provided some suggested strategies for providers to consider.

• Train all levels of caregivers on how to utilize telehealth equipment, especially physicians, physician assistants and nurses. This is especially true as elective surgeries are curtailed and more caregivers become available to be reassigned as supplemental staff. While it would be important to increase the ranks of those trained on the more sophisticated telehealth equipment, as communication using laptops and smartphones becomes more commonplace in this crisis, training modules can be quickly implemented using online instruction that many organizations have in place or using platforms such as Zoom, WebEx and Google.
• Encourage recognition of a patient’s home as a site of care. As infectious disease specialists have made clear, COVID-19 is quickly spread and frontline health workers are at high risk of being infected with the virus. Consider developing new policies and procedures to require patients to stay at home until extremely acute symptoms develop. Monitoring can be performed using smartphones and laptops and virtual visits in the home to cut down the amount of traveling and exposure that those infected will require.
• Establish websites for the public to access. Consider including not only educational and informational resources but online registration for a telemedicine visit for those who feel they have symptoms or those who have been confirmed with the virus. If possible, consider partnering with other providers in the community to avoid overwhelming one facility or duplicating efforts. Funders might also be available to support this effort.
• Establish monitoring systems using electronic communication for those patients who need to be followed. Currently physicians and other health care workers are advising those tested for COVID-19 that there is a waiting period before test results are available. Estimates that have been reported are from two days to six days. Local providers should be able to continue to monitor those with COVID-19 symptoms remotely through telehealth and be prepared to step up the level of surveillance as symptoms worsen with higher levels of medical expertise. All of this can be done using telehealth systems.
• The highest risk patients for COVID-19 appear to be elderly, over 60 years of age, especially those with preexisting heart and respiratory problems. Acute care providers should set up telehealth video links with local skilled nursing facilities, assisted living housing, senior independent living projects, urgent care centers and others treating this high-risk group. Again, the concept would be to treat the individuals in place and not move them immediately to acute care hospitals until required. Some training would have to be provided to these other types of facilities, but telehealth processes and procedures can be taught by remote-learning modules that should already be available or easily produced.
• Investigate bandwidth and connectivity issues now in the communities that you serve. Not all neighborhoods will have the telecommunications infrastructure to support high-bandwidth telehealth platforms. This is especially true in low-income and impoverished areas in urban settings and rural parts of the United States. Since bandwidth will not be corrected in time for the pandemic, facilities should consider alternative communication devices, such as laptops and smartphones, to communicate with potential and ongoing patients. Web-based platforms may also be considered as well as link-based video conferences. With some of the HIPAA restrictions being relaxed on the federal level, past policies of not using these devices might be reconsidered. State law on privacy should also be consulted.
• Check current state laws on allowing out-of-state providers to provide care. While the federal government has said that it will issue regulations allowing all licensed providers to practice in any state, it has not yet done so. Check with your legal adviser to see whether your state has modified licensure requirements or has any exceptions that would allow specialty consults and assistance from providers in neighboring states.
• Be certain to contact your insurance broker regarding malpractice and general liability coverage for telehealth services. Again, because we are moving beyond traditional telehealth services by using smartphones and laptops, the technologies can be looked at differently, and past protocols will probably be changing out of necessity. As health care providers, you must always be vigilant to the potential for risk after the pandemic is contained.

Conclusion

As mentioned previously, this is an ever-changing area of the law given the challenges many of our health care providers and health systems are struggling with during this unprecedented emergency. We will continue to monitor and update this site as new information becomes available. In the meantime, we also want to provide you with the following links to some of the recent guidance issued regarding telehealth.

* Troutman Sanders