On March 31, 2020, the Centers for Medicare & Medicaid Services (CMS) issued an interim final rule with comment period (IFC). This alert is part of a series of alerts discussing the IFC provisions and comprehensive actions CMS is taking that are most important to healthcare providers. This alert also discusses certain temporary waivers issued by other federal agencies and the telehealth-related expansions set forth in the Coronavirus Aid, Relief, and Economic Security (CARES) Act.
As the impact of the 2019 novel coronavirus disease (COVID-19) pandemic continues to set in and as healthcare providers and patients adjust to the “new normal,” the U.S. government continues to expand access to healthcare via telehealth services, especially for high-risk Medicare beneficiaries, while simultaneously attempting to flatten the curve of COVID-19 infections. Building on prior expansions, on March 31, CMS issued the IFC with 30 immediate rule changes and temporary waivers to the current regulatory framework. CMS’ stated aim is to provide the U.S. healthcare system with maximum flexibility and lessen administrative burdens to allow Medicare beneficiaries to receive medically necessary services. CMS announced that these temporary changes and regulations will apply, effective March 31, across the entire U.S. healthcare system for the duration of the emergency declaration.
As part of its effort to reduce the spread of COVID-19 without jeopardizing access to medically necessary care, the federal government — through the CARES Act, the IFC and the blanket waivers issued by CMS — has further expanded the availability of telehealth services, building on its initial actions, as discussed in a March 18 McGuireWoods alert. During the initial wave of CMS’ telehealth expansions, on March 17, CMS published a version of the below table in its fact sheet on expanded telehealth services in light of the public health emergency (PHE). Since that publication, policymakers have taken significant actions to continue to expand the availability of virtual services to Medicare beneficiaries. The table below compiles this former guidance with information on the new guidance and rules, discussed more fully below in this alert.
--> Scroll to see full table data
--> Scroll to see full table data
|Type of Service
||What Is the Service?
||Permitted Rendering Provider
|Medicare Telehealth Services
||A visit between a provider and patient that is reimbursed the same as if an in-person Medicare visit occurred
||A phone itself can be used,* but technology must have two-way, real-time, audio and video capabilities
||Qualified Providers (defined below)
||Full list is set forth on CMS’ website*
||For new* and established patients
||A brief (5-10 minutes) check-in between a provider and patient using a telephone or other telecommunications device
||Telephone or other telecommunication device (audio-only equipment is sufficient)
||Qualified Providers and other non-Qualified Providers (e.g., licensed clinical social workers, clinical psychologists, physical therapists, occupational therapists, or speech language pathologists)*
|For new* and established patients
|Online digital E/M Services (i.e., e-Visits)
||A brief communication between a provider and patient using an online patient portal that is not a “real time” communication
||Online patient portal
|For new* and established patients
|Qualified Providers and other non-Qualified Providers (e.g., licensed clinical social workers, clinical psychologists, physical therapists, occupational therapists, or speech language pathologists)*
|Telephonic Assessments and E/M Services*
||Telephonic assessments and management services with Medicare beneficiaries or parties other than the Medicare beneficiary who have received or will receive the actual care from the rendering provider*
||Telephone or other telecommunication device (audio-only equipment is sufficient)*
|For established patients, parents, or guardians*
Service cannot originate from a related E/M service provided within the previous seven days and cannot lead to an E/M service or procedure within the next 24 hours or soonest available appointment*
* Represents new additions since CMS’ March 17 publication of the Medicare Telemedicine Fact Sheet and likely indicates only temporary flexibilities in light of the COVID-19 pandemic.
This alert summarizes eight key policy changes from CMS and other policymakers’ collective responses to expand available telehealth services for Medicare beneficiaries during this COVID-19 PHE.
- Medicare Telehealth Services — Notable Expansions and Requirements
- Providers can render telehealth services to Medicare beneficiaries in their home. As detailed in an earlier alert, under normal circumstances, Medicare will cover telehealth services for a beneficiary only if the beneficiary is located at a certain originating site of care (e.g., in a medical facility) in a qualifying rural area and received the telehealth services at such originating site of care or in other limited circumstances. However, in light of the PHE, CMS previously expanded coverage and reimbursement for telehealth services (now rendered on or after March 1), by no longer limiting the availability of Medicare telehealth services to patients in rural settings and waiving the “eligible originating site” requirement, such that telehealth services can now be provided in all care settings, including for a patient receiving care at home, for the duration of the PHE.
- Providers no longer need an established relationship with a patient to render telehealth services. An earlier alert noted that a Medicare beneficiary is eligible for reimbursable telehealth services under this expanded waiver only if the beneficiary received a Medicare-paid service from someone in the provider’s practice in the last three years; however, Congress relaxed this three-year requirement in the CARES Act. Consequently, providers are able to provide telehealth services to both existing and new patients. However, absent modifications to state law, state licensure laws that require an established provider-patient relationship prior to the provision of telehealth services, including the ordering of prescription drugs, still apply.
- CMS temporarily added new CPT codes for Medicare telehealth services. CMS expanded the list of covered Medicare telehealth services that are reimbursable with dates of service beginning March 1, through the end of the PHE. The complete list is set forth on CMS’ website and differentiates the CPT codes that are only a temporary addition in light of the PHE from those CPT codes that have historically been available for reimbursement. These new CPT codes include codes for various new telehealth services including, but not limited to: initial nursing facility visits, radiation treatment management services, home visits, physical therapy services, occupational therapy services, clinical social worker services and emergency department visits, when such services are rendered via telehealth during the PHE. In the IFC, CMS noted that it welcomes the public’s ongoing requests to add CPT codes to the list of reimbursable telehealth services that will provide a “clear clinical benefit” during this PHE.
Under normal circumstances, the Controlled Substances Act permits a practitioner to prescribe controlled substances (including e-prescriptions issued via telemedicine) to an individual only after the practitioner has conducted an in-person evaluation of such individual. As detailed in an earlier McGuireWoods alert, in light of the PHE, the U.S. Drug Enforcement Administration (DEA) declared that practitioners may issue prescriptions for controlled substances to patients via telemedicine, even for patients for whom they have not conducted an in-person medical evaluation, only during the COVID-19 outbreak, provided: (1) the prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice; (2) the telemedicine communication is conducted using an audiovisual, real-time, two-way interactive communication system; and (3) the practitioner is acting in accordance with applicable federal and state laws. Many states, however, also have their own rules and regulations regarding in-person or face-to-face evaluations in connection with prescriptions of controlled substances. Therefore, it is important to review any applicable state law provisions and engage experienced healthcare counsel prior to prescribing controlled substances. For more information on how federal agencies have reduced barriers to controlled substances and increased access, review a March 31 McGuireWoods alert.
- CMS did not expand the list of eligible telehealth providers. Although CMS expanded the list of reimbursable telehealth CPT codes to include a variety of therapy-related codes, CMS will reimburse Medicare telehealth services only to the extent they are rendered by certain qualified or eligible practitioners (e.g., physicians, physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, certified nurse-midwives, clinical social workers, clinical psychologists, and registered dietitians or nutrition professionals) (i.e., “Qualified Providers”). This means certain licensed therapists cannot provide Medicare-reimbursed telehealth services on their own. The IFC did not change, expand or amend the definition of “Qualified Providers.” Therefore, although CMS added therapy services to the reimbursable CPT code list, CMS reiterated in the IFC that these services are not reimbursable if rendered by physical therapists, occupational therapists, speech-language pathologist or any other provider who is not included in the definition of “Qualified Providers.”
- Technology with audio and video is still required for Medicare telehealth services. Although CMS clarified in the IFC that a provider may use a phone when rendering Medicare telehealth services, CMS reiterated that the phone (or any other multimedia communications equipment that is utilized) must have two-way, real-time, audio and video capabilities in order for the provider to receive payment for Medicare telehealth services. An earlier alert describes the use of non-public-facing remote technologies for telehealth services in more detail and also explains the Office for Civil Rights’ exercise of HIPAA enforcement discretion in connection with telehealth services.
- CMS clarified how to bill for telehealth services during the PHE. In the IFC, CMS explained that it will reimburse non-traditional Medicare telehealth services with dates of service on or after March 1 at the same rate as the in-person service for the duration of the COVID-19 outbreak. To effectuate this policy, CMS instructed providers in the IFC that when billing for Medicare telehealth services during this PHE, providers are to report the place of service (POS) code that would have been reported had the service been furnished in person, together with modifier 95 (i.e., the new, temporary telehealth modifier for purposes of billing telehealth services during the PHE). In the IFC, CMS clarified that a provider can still bill traditional Medicare telehealth services using the telehealth-designated POS code 02, if such provider chooses “for whatever reason” to bill in this manner (e.g., to maintain consistent billing practices). However, if providers seek to bill traditional Medicare telehealth services using the telehealth-designated POS code 02, we recommend complying with all traditional telehealth rules and regulations that are in place under normal circumstances.
CMS also revised its policy regarding E/M level selection with respect to office and outpatient E/M visits when such services are furnished via telehealth in the IFC. During this PHE, providers are to select the level for E/M services based on the applicable provider’s Medical Decision Making (MDM) or Total Time, with time defined as all of the time associated with the E/M on the day of the encounter. CMS removed the requirements regarding documentation of history and/or physical exam in the medical record for this interim period; however, CMS reiterated that providers must still thoroughly document E/M visits as necessary to ensure quality and continuity of care.
In addition, if a provider renders telehealth services from the provider’s home, the applicable provider’s home address should be listed on the service claim form to identify where the services were rendered. CMS clarified that providers do not have to separately enroll their home addresses as a practice location on the applicable provider’s Medicare enrollment form.
- Medicaid and commercial insurance. This alert relates solely to the provision and reimbursement of telehealth services furnished to Medicare beneficiaries and does not incorporate any guidance from state Medicaid programs or commercial payors. However, in line with CMS’ actions, state Medicaid programs and commercial payors continue to expand access to telehealth services for patients. CMS encouraged states to implement telehealth options for patients as a way to combat the COVID-19 pandemic and increase access to care, but each state’s Medicaid program will determine the scope and availability of such telehealth flexibilities. With respect to commercial payors, each commercial payor has different policies on telehealth and providers must conduct a payor-by-payor analysis to determine the expansions payors have adopted in light of the PHE. In general, it appears commercial payors are typically expanding telehealth policies in the following ways, although the details will vary payor-by-payor.
- Commercial payors are waiving member cost-sharing obligations (i.e., co-pays, co-insurance and deductibles) for (a) COVID-19 or testing-related visits, (b) all telehealth services with in-network providers, or (c) both.
- Payors are reimbursing phone/telehealth visits at the same rate as face-to-face visits for participating providers, subject to applicable state guidance.
- Payors are listing the specific CPT codes that are available for reimbursement when rendered via telehealth.
- Similar to the federal agencies, commercial payors are allowing the use of audiovisual applications even where the vendor will not sign a business associate agreement or make representations as to HIPAA compliance.
Most commercial payors have posted alerts on their websites about expanded policies regarding telehealth services. The American Psychiatric Association also consolidated guidance from certain commercial payors in light of COVID-19 on its website.
- Expanded Access to Virtual Check-Ins and e-Visits. CMS reiterated in the IFC that in addition to Medicare telehealth services, there are other virtual services currently available to Medicare beneficiaries: virtual check-ins and e-visits. Unlike Medicare telehealth services, virtual check-ins and e-visits do not require video technology and are intended to be brief communications, as outlined in the table above. Absent the PHE, virtual check-ins are available only if furnished by Qualified Providers to established patients. CMS expanded the availability of virtual check-ins to allow Qualified Providers as well as other practitioners — such as licensed clinical social workers, clinical psychologists, physical therapists, occupational therapists and speech-language pathologists — to provide virtual check-ins to new and established patients under the IFC. However, CMS retained the requirement that a virtual check-in is not separately billable if such service originated from a related E/M service furnished by any provider within the previous seven days or if such service leads to an E/M service or procedure within the next 24 hours or soonest available appointment. CMS also stated in the IFC that during the PHE, consent by a patient to receive a virtual check-in service can be documented by the billing provider or an auxiliary staff member supervised by the billing provider.
Similarly, CMS relaxed the required patient relationship with respect to e-visits and clarified that providers can now provide e-visits to established or new patients during the PHE. Certain e-visits can be rendered by other healthcare providers, even those providers who are not Qualified Providers (e.g., social workers, physical therapists, occupational therapists, etc.). CMS reiterated that patients must initiate e-visits, but that practitioners can educate patients on the availability of e-visits prior to patient initiations. CMS’ letter to clinicians includes additional details on providing telehealth, virtual check-ins and e-visits.
- New Access to Telephonic E/M Services. In the IFC, CMS temporarily expanded the availability of Medicare reimbursement for traditionally non-covered services provided via an audio-only telephone during the PHE. Although Medicare program reimbursement for these services is lower than the reimbursement for Medicare telehealth services, Qualified Providers can now obtain separate payment for certain telephonic assessments and management services (i.e., CPT codes 98966-98968 and 99441-99443). These services are not traditionally reimbursable services under Medicare, but due to the PHE, Qualified Providers can now provide these services by telephone (i.e., no video required) and obtain reimbursement. These telephonic assessments and management services are unlike Medicare telehealth services as the services can be rendered via telephone only, without video. Further, these telephonic assessments and management services have specific CPT codes that are reimbursable and are different than the CPT codes designated as virtual check-ins and e-visits.
- Industry-Specific Flexibilities and Waivers Related to Expanded Telehealth Availability.
- Radiation Treatment. The IFC added CPT code 77427 (radiation treatment management, five treatments) to the Medicare telehealth CPT code list. In light of the PHE, CMS has allowed the required weekly face-to-face visit component of radiation treatment management services to be conducted via telehealth “when the billing practitioner weighs the exposure risks against the value of in-person assessment on a case-by-case basis.”
- Home Health Agencies (HHAs). As discussed in a previous McGuireWoods alert, the CARES Act and the IFC expanded the availability for HHAs to provide services to Medicare beneficiaries using telehealth within the 30-day episode of care, so long as permitted in the applicable patient’s plan of care. The previous McGuireWoods alert also discusses how under the IFC, HHAs can perform home health initial assessments and homebound status reviews remotely via telehealth, instead of in person, as traditionally required.
- Hospice Providers. As discussed in a previous McGuireWoods alert, pursuant to the CARES Act and the IFC, Medicare-enrolled hospice providers can also take advantage of expanded telehealth availability to render routine hospice home care to a patient using telehealth technology, as long as the use of such technology is documented in the patient’s plan of care, and to conduct patient recertifications via telehealth (which historically required a face-to-face encounter).
- End-Stage Renal Disease (ESRD) Facilities. During the PHE, clinical examination of an ESRD patient’s vascular access site can be furnished as a telehealth service. As discussed in a previous McGuireWoods alert, CMS waived certain in-person visit requirements applicable to the care of dialysis patients, but encouraged ESRD facilities to utilize telehealth “to ensure patient safety in the absence of such [in-person] visits.”
- Nursing Homes. To ensure the safety and health of nursing home residents and to reduce the spread of COVID-19, CMS issued certain emergency blanket waivers for nursing facilities including, but not limited to, waiving required in-person visits for nursing home residents and allowing visits to be conducted via telehealth, as appropriate. For more information on these temporary changes and waivers for nursing homes as well as other healthcare providers and facilities, review CMS’ COVID-19 emergency declaration.
- Inpatient Rehabilitation Facilities. CMS has recognized the importance of limiting contact during the COVID-19 pandemic, while reiterating the importance of the in-person assessments rendered by a physician to a patient admitted to an inpatient rehabilitation facility (IRF). In the IFC, CMS modified the three-day-per-week face-to-face requirement for IRF patients to permit a physician to conduct the three weekly required visits via telehealth during a patient’s stay in an IRF.
- “Direct Supervision” of Non-Physician Practitioners Can Be Provided Virtually. In the IFC, CMS indicated that during the PHE, physicians can provide direct supervision to auxiliary personnel or a non-physician practitioner (NPP) virtually through audio/video real-time communications technology in order to reduce exposure risks for patients and rendering providers. This replaces the traditional requirement that a service rendered by an NPP must be furnished under a physician’s direct supervision, i.e., with the physician physically present in the office with the NPP “and immediately available to provide assistance and direction” to be covered “incident to” the services of a physician.
- Requirements for Opioid Treatment Programs (OTPs). CMS has allowed OTPs to utilize audio-only telephone calls with beneficiaries during the PHE, for the counseling and therapy portions of weekly reimbursed bundles. In the absence of this change, OTPs could provide only two services within the bundle payment off-site: (1) individual substance abuse counseling and (2) individual and group therapy with a physician or psychologist. In both cases, CMS mandated two-way interactive audiovideo communication technology so participants could view one another. Recognizing, however, that during the PHE not all beneficiaries may have access to such communications technology while being instructed to self-isolate or social distance, CMS has now allowed the bundled payment to continue during the PHE if services are provided only through the telephone.
- Application of the Expansion of Telehealth Services to Teaching Physician Services. CMS has allowed the temporary use of telehealth services with respect to teaching physician services during the PHE. CMS’ regulations generally provide that if a resident participates in a service furnished in a teaching setting, the teaching physician must be physically present during the key portion of the service in order for a Medicare physician fee schedule payment to be made for that service. To increase the capacity of academic medical centers and residents to respond to the COVID-19 pandemic, CMS is temporarily allowing a teaching physician to meet direct supervision requirements through interactive telecommunications. In addition, Medicare may make payments for telehealth services rendered under the direct supervision of the teaching physician. For more information on these temporary changes, review an April 3 McGuireWoods alert.
- Federal Communication Commission’s (FCC) New Grant Program Offers Support to Providers to Create Telehealth Programs. The CARES Act provided the FCC with $200 million in funding for a COVID-19 Telehealth Program as a way to reduce barriers for providers and patients to effective telehealth services, particularly in light of the PHE. With the appropriated funds, on April 2, the FCC adopted a grant program to support specific providers (e.g., post-secondary educational institutions offering healthcare instruction, teaching hospitals, medical schools, community health centers or health centers providing healthcare to migrants, local health departments or agencies, community mental health centers, not-for-profit hospitals, rural health clinics, and skilled nursing facilities) so providers can purchase telecommunications and information services, broadband connectivity and devices necessary to create and implement a telehealth program. The FCC states that to apply for funding under the COVID-19 Telehealth Program, each provider must either have an eligibility determination from, or have a pending eligibility determination with, the Universal Service Administrative Company (USAC) for each health care provider site that it includes in its application. The FCC announced that it will select participants in areas that “have been hardest hit by COVID-19” including those providers who serve “high-risk and vulnerable patients.” Providers interested in applying for the COVID-19 Telehealth Program can find more information on the application process and information on what an application must contain in the FCC Guidance. The FCC’s alert states that it will process applications on a rolling basis.
Various federal government agencies, including CMS, continue to release and publish guidance and waivers in connection with the PHE. As the COVID-19 situation continues to evolve, CMS encourages all providers to monitor the Centers for Disease Control and Prevention website for up-to-date information and resources and to contact local health departments when needed.