Medicare Telehealth Services

On March 6, Congress passed the Coronavirus Supplemental Appropriations Act (H.R. 6074), which included a $500 million authorization to enhance telehealth services. The legislation gives the U.S. Department of Health and Human Services (HHS) Secretary the authority to waive or modify certain telehealth Medicare requirements when the president has declared a National Emergency, or the HHS Secretary has declared a public health emergency.

The following requirements for billing Medicare telehealth services are waived during the coronavirus (COVID-19) public health emergency:

• Geographic restrictions. Qualified providers are permitted to furnish telehealth services to patients located in any geographic area (e.g., both non-rural and non-health professional shortage areas (HPSAs)).
• Originating site restrictions. Qualified providers are permitted to furnish services to patients in their homes.
• Telephone restrictions. Telehealth services can be furnished via telephone or other qualifying devices so long as the device has both audio and video capabilities. However, effective immediately, the HHS Office for Civil Rights (OCR) will exercise enforcement discretion and waive penalties for HIPAA violations against healthcare providers that serve patients in good faith through everyday communications technologies such as FaceTime or Skype.

On March 17, the Centers for Medicare & Medicaid Services (CMS) released guidance to assist healthcare providers in implementing these new waivers.
In addition to the above-listed restrictions,

• reimbursement is allowed for any telehealth-covered code, even if unrelated to COVID-19 diagnosis, screening or treatment.
• CMS will not enforce the established relationship requirement codified in H.R. 6074. H.R. 6074 implemented an "established patient" requirement for telehealth services furnished pursuant to any new waivers. This would have required that patients be seen by the provider furnishing telehealth services, or provider in the same group practice, within three years and had services billed under Medicare. CMS guidance clarifies that it will not enforce this requirement, meaning that patients need not been billed under Medicare in the past three years by the provider or practice.
• to deliver telehealth services, a clinician must still be a Medicare "qualified provider." The waiver did not expand the list of eligible providers to provide services and be reimbursed. The eligible providers are:
  • physicians
  • nurse practitioners
  • physician assistants
  • nurse midwives
  • clinical nurse specialists
  • certified registered nurse anesthetists
  • clinical psychologists (CP)
  • clinical social workers (CSWs) (NOTE: CPs and CSWs cannot bill Medicare for psychiatric diagnostic interview examinations with medical services or medical evaluation and management services. They cannot bill or get paid for current procedural terminology (CPT) codes 90792, 90833, 90836 and 90838).
  • Registered dietitians or nutrition professionals
• cost-sharing still applies for telehealth visits paid by federal healthcare programs, but the Office of the Inspector General (OIG) is providing providers the flexibility to reduce or waive fees.
• CMS waived reimbursement restrictions on practicing across state lines, but state licensure requirements still apply. Many states are taking action to ease these requirements.
• in addition to the expanded telehealth services under the waivers, providers can still provide other telemedicine services, including Virtual Check-ins (G2012) and Store and Forward Technology (G2010). These codes are also only available for established patients, are patient-initiated and cannot result from or lead to an evaluation and management service.

Notably, the third coronavirus supplemental (currently under development) includes provisions that would codify the established relationship provision, allow Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) to furnish telehealth services to beneficiaries in their home or other setting and expand telehealth for home dialysis during the COVID-19 emergency.

Medicaid Telehealth Services

A Medicaid FAQ was issued stating that state Medicaid programs have broad authority to utilize telehealth within their Medicaid programs, including telehealth or telephonic consultations in place of typical face-to-face requirements when certain conditions are met. As a result, access to and reimbursement of telehealth varies by state. CMS encouraged states to use this flexibility to increase the use of telehealth and provided further guidance and clarification in relation to state coverage:

• no federal approval is necessary 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
• a state plan amendment would be necessary to accommodate any revisions to payment methodologies to account for telehealth costs

Regarding licensing, Vice President Mike Pence said an upcoming HHS regulation is forthcoming that would allow "all doctors and medical professionals to practice across state lines to meet the needs of hospitals that may arise in adjoining areas." To date, it has been up to states to waive those restrictions. For a list of licensure waivers by state from the Federation of State Medical Boards (FSMB), click here.

Commercial Payors

Several health plans have announced that they will make telehealth more widely available or offering telehealth services for free for a certain period. Some of the announcements have come from Aetna, Cigna and BlueShield BlueCross.

HIPAA Enforcement

On March 17, OCR issued guidance that loosens restrictions for healthcare professionals.

• OCR will waive potential HIPAA penalties for good faith use of telehealth during the nationwide public health emergency due to COVID-19.
• A covered healthcare professional that wants to use audio or video communication technology to provide telehealth to patients during the COVID-19 emergency can use any non-public-facing remote communication product that is available to communicate with patients and provide telehealth in good faith without the risk that OCR might impose penalties for noncompliance with the HIPAA rules.
• This exercise of discretion applies to telehealth provided for any reason, not only the diagnosis and treatment of COVID-19-related health conditions.

OIG Enforcement

On March 17, the HHS Office of Inspector General (OIG) issued guidance that provides flexibility during this national emergency. Specifically, physicians and other practitioners will not be subject to administrative sanctions for reducing or waiving any cost-sharing obligations federal healthcare program beneficiaries may owe for telehealth services furnished during the national emergency.

DEA Enforcement

The Drug Enforcement Administration (DEA) released guidance allowing DEA-registered providers to issue prescriptions for controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all of the following conditions are met:

• the prescription is issued for a legitimate medical purpose by a provider acting in the usual course of her professional practice
• the telehealth communication is conducted using an audio-visual, real-time, two-way interactive communication system
• the provider acts under applicable federal and state law

The provider may issue a prescription electronically (for schedules II-V) or by calling in an emergency schedule II-V prescription to the pharmacy.

Resources

• CMS has released FAQs outlining the new Medicare telehealth waiver.
• CMS released Medicaid fee-for-service telehealth guidance.
• OCR released a Notification of Enforcement Discretion for telehealth remote communications during the COVID-19 nationwide public health emergency.
• OCR also released guidance on HIPAA.
• The DEA released a clarification noting that healthcare professionals can now prescribe a controlled substance to a patient using telehealth technology.
• A list of Licensure Waivers from the Federation of State Medical Boards (FSMB)
• American Medical Association (AMA) Guide on Coding and Payment