March 18, 2020
On March 17, 2020, the Centers for Medicare and Medicaid Services (CMS) and other agencies released further guidance on the use of telehealth during the coronavirus (COVID-19) national emergency. The guidance implements provisions of the Coronavirus Preparedness and Response Supplemental Appropriations Act, as signed into law on March 6, 2020 (the first COVID-19 supplemental). The act authorized the US Department of Health and Human Services (HHS) to waive certain traditional Medicare telehealth requirements during this national emergency.
Many stakeholders have long advocated that telehealth restrictions be eased in this manner. During these unprecedented times, these changes will benefit both the patient and provider community. Patient travel and exposure to COVID-19 will be limited, which adheres to other federal guidelines and may reduce the spread of the virus. At the same time, providers will have an opportunity to provide some healthcare services to their patients without a face-to-face encounter, preserving revenue during the crisis.
Medicare Guidance on Telehealth Visits
Current telehealth law and regulations allow Medicare to pay providers for services furnished through telehealth under certain circumstances. One requirement relates to the “originating site”: a beneficiary receiving the telehealth services must generally be located in a rural area and receive the treatment in a medical facility. The CMS waiver expands payment for telehealth visits by lifting the originating site requirement, allowing patients to receive telehealth services in all locations, including their homes.
The original statutory language included in the Coronavirus Preparedness and Response Supplemental Appropriations Act created the flexibility for this telehealth waiver and required an established relationship with the patient. In announcing its March 17 guidance, CMS said that it would not conduct audits to verify such relationships, thus reducing compliance burden and potentially increasing opportunities for providers to provide telehealth services to patients.
CMS also reminded providers of two other telehealth options: virtual check-ins and e-visits. These services are currently reimbursed by CMS and did not change with the new guidance.
Medicaid Guidance on Telehealth Visits
States currently have flexibility to determine whether and how to cover telehealth, including what types to cover, where in the state it can be covered, how it is provided/covered, and what types of telehealth providers may be covered/reimbursed. As a result, access to and reimbursement of telehealth varies by state. CMS encouraged states to use this flexibility to increase use of telehealth, and provided further guidance and clarification in relation to state coverage:
The HHS Office for Civil Rights (OCR) is responsible for enforcing certain regulations issued under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to protect the privacy and security of protected health information. Covered healthcare providers subject to the HIPAA rules may seek to communicate with patients and provide telehealth services through remote communications technologies. During this national emergency, some of these technologies, and the manner in which HIPAA covered healthcare providers use them, may not fully comply with the normal HIPAA requirements. Under OCR guidance issued on March 17, 2020, these restrictions are substantially loosened, reducing risk for providers:
Under current law, if providers routinely reduce or waive costs owed by federal healthcare program beneficiaries, including cost-sharing amounts such as coinsurance and deductibles, they potentially implicate the federal anti-kickback statute, the civil monetary penalty and exclusion laws related to kickbacks, and the civil monetary penalty law prohibition on inducements to beneficiaries.
HHS Office of Inspector General (OIG) guidance issued March 17, 2020, 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.
Under current law, a prescription for a controlled substance issued though online services such as telehealth generally requires an in-person medical evaluation. However, the Controlled Substance Act gives DEA authority to waive certain requirements in the event of a public health emergency.
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 provider may issue a prescription electronically (for schedules II-V) or by calling in an emergency schedule II-V prescription to the pharmacy.