CMS Temporarily Expands Access to Telehealth Services by Medicare Beneficiaries in Response to the COVID-19 Public Health Emergency

Introduction

On March 17, 2020, CMS and OIG announced new measures and policies to ensure that Federal health care plan beneficiaries are receiving the vital health care services that they need during the COVID-19 public health emergency.

CMS Telehealth Expansion

For services rendered on or after March 6, 2020, CMS will temporarily reimburse practitioners for telehealth services rendered to Medicare beneficiaries. It is important to note that this telehealth expansion applies ONLY to Medicare beneficiaries, not all Federal health care plan beneficiaries. Medicaid already provides great flexibility to states to reimburse for telehealth services, although it is currently unclear whether Virginia Medicaid beneficiaries will have access to expanded telehealth services. During this time, telehealth services rendered to Medicare patients will be reimbursed under the Physician Fee Schedule at the same rate as in-person visits. Prior to this announcement, Medicare only covered telehealth services in very limited circumstances.

The services that can be furnished and payable via telehealth and the practitioners that may furnish those services does not change with this expansion.[1] The two key changes to the Medicare telehealth rules through this announcement are: (1) the loosening of the “originating facility” and patient location requirements and (2) the announcement that HHS will not conduct audits to ensure that a prior practitioner/patient relationship existed prior to claims submitted for telehealth visits during this public health emergency.

Under prior existing Medicare rules, a Medicare beneficiary can only receive telehealth services if they reside in certain rural areas and receive services at a qualifying “originating facility.” A qualifying “originating facility” was limited to certain health care facilities and, importantly, did not include the patient’s home. The new waiver allows a patient in any area of the country to receive telehealth services and expands the definition of a qualifying “originating facility” for purposes of telehealth to be ANY healthcare facility OR the patient’s home.

While typically a practitioner must have a prior validly established patient/practitioner relationship with the patient before the practitioner can receive payment for telehealth services rendered to the patient, HHS will not audit telehealth visit services offered during this time of crisis to ensure prior establishment of such a relationship. This expansion does not affect the requirement that a prior valid patient/practitioner relationship must be established before payment can be received for e-visit messaging and virtual check-in services.

These changes will remain in effect until the Secretary of HHS announces an end to the COVID-19 public health emergency.

OIG Policy Changes

Typically, routine waivers or reductions of cost-sharing obligations owed by Federal health care beneficiaries (including co-pays and deductibles) possibly violate various federal laws aimed at prohibiting beneficiary inducements and kickbacks. However, during this public health emergency, OIG will not subject physicians and practitioners to administrative sanctions for reductions or waivers of such cost-sharing obligations owed by Federal health care plan beneficiaries for received telehealth services furnished consistent to concurrently applicable coverage and payment rules.

OIG noted the following in connection to this Policy Statement:

• This Policy Statement does not require practitioners to reduce or waive such cost-sharing obligations.
• OIG will not view the provision of free telehealth services alone during this time to be an inducement or likely to influence future referrals.
• Nothing in this Policy Statement affects the operation and application of CMS’s programmatic rules and regulations.
• Nothing in this Policy Statement otherwise affects a practitioner’s billing responsibilities.
• Nothing in this Policy Statement otherwise affects a practitioner’s responsibility to comply with other applicable Federal, state, or local laws, rules, and regulations.

HIPAA

To expand telehealth services even when providers or patients may not have access to commercial, “HIPAA-compliant” secure communications systems, CMS expressly permits providers and patients to utilize “everyday communications technologies” in conducting telehealth services:

Effective immediately, the HHS Office for Civil Rights (OCR) will exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency. For more information: https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/index.html.[2]

Thus, patients not reachable using your secure telehealth system can still access telehealth through commercial communications technologies.

Conclusion

CMS and OIG hope that these changes encourage people to stay safe, while still receiving their vital and necessary health care services. Mellette PC encourages all practitioners to remain as safe as possible while on the frontlines of the COVID-19 crisis.

A link to CMS’s fact sheet about the telehealth expansion is here: https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet.

A link to CMS’s accompanying press release is here: https://www.cms.gov/newsroom/press-releases/president-trump-expands-telehealth-benefits-medicare-beneficiaries-during-covid-19-outbreak.

A link to OIG’s Policy Statement is here: https://oig.hhs.gov/fraud/docs/alertsandbulletins/2020/policy-telehealth-2020.pdf.

Should your facility or practice have any questions or concerns about caring for patients or residents that may have COVID-19, please contact your state or local health department. If you have any questions about these policy and telehealth changes, please contact Peter Mellette, Harrison Gibbs, Elizabeth Dahl Coleman, or Scott Daisley at Mellette PC.

This client advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.

[1] The list of CPT codes that are payable when furnished via telehealth services is here: https://www.cms.gov/Medicare/Medicare-General-Information/Telehealth/Telehealth-Codes.

[2] https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet