By Rebecca Burke and Megan La Suer

In guidance released by the U.S. Department of Health and Human Services (HHS) on March 17, 2020, the Administration greatly expanded Medicare coverage of telehealth services to cope with the national public health emergency posed by COVID-19 describing broadened access to telehealth services under Medicare. This guidance and an accompanying set of FAQs implements legislation enacted on March 6, 2020 which, among other things, gave the Secretary of HHS discretion to waive statutory rural and site of service coverage restrictions on services provided via telehealth.

Summary of key provisions within the waiver:

  • The waiver, authorized under section 1135(b)(8) of the Social Security Act, is retroactive to March 6, 2020;
  • Provides for Medicare coverage for telehealth services regardless of where the beneficiary is located;
  • Allows services to be provided to beneficiaries in any healthcare facility, as well as in their home;
  • Is not limited to telehealth services related to COVID-19 and applies to any medically necessary covered service.
  • Includes a statement that, while the waiver is limited to established patients (those seen within the last 3 years), HHS will not conduct audits to ensure that a prior relationship existed.
  • Provides flexibility, under certain conditions for health care providers to reduce or waive cost-sharing obligations for telehealth visits paid by federal health care programs without violating beneficiary inducement laws.
  • Allows for health care providers to use certain audio-visual chat applications to provide telehealth services through HIPAA waivers

Discussion

The Administration broadly interpreted the Secretary’s waiver authority to relax telehealth rules so that patients could avoid unnecessary trips to healthcare facilities while ensuring patients continue to receive the care they need. Notably, the waiver extends to all healthcare needs – not only those related to COVID-19.

Important takeaways for health care providers include:

  • Services & Payments: The waiver applies to all services that are currently included on the CMS telehealth list. These services are described by HCPCS codes and paid under the physician fee schedule. Payment for telehealth services is the same as if the service were provided in person; however, reimbursement is at the lower “facility” rate rather than the “non-facility” rate that applies to most services provided in a physician’s office.
  • Health Care Professionals: The waiver does not expand the types of qualified health professionals entitled to provide or bill for services furnished via telehealth. As provided under the current Medicare regulations, billing is still limited to certain professionals (e.g., physicians, nurse practitioners) and not, for example, home health agencies, skilled nursing facilities, or other institutional providers. However, those entities may still be able to bill the originating site fee.
  • Existing Patient Relationships: Although the statutory waiver language is limited to patients with whom a practitioner (or another practitioner in the same practice) has an established relationship, CMS stated in its release that it does not intend to enforce this requirement and will not conduct audits to determine if such a prior relationship exists.
  • Other non-face-to-face Services: The waiver does not impact services such as virtual-check-ins and e-visits which do not involve face-to-face communications. Those types of services were never subject to geographic or site of service limitations and can be furnished and covered as before.
  • Medicaid: The waiver does not apply to Medicaid; however, state Medicaid agencies already have authority to cover a broad range of telehealth services without geographic or site restrictions.
  • HIPAA: The HHS Office of Civil Rights (OCR) will not impose certain penalties on HIPAA covered health care providers using telehealth in ways that do not comply with HIPAA rules. Specifically, HIPAA technology requirements are relaxed for all covered health care providers to allow for non-public video chat applications such as Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype for all telehealth services.  The agency further advises that public facing applications such as Facebook Live, Twitch, and TikTok should not be used to provide telehealth services.  Although not required under the waiver, OCR encourages health care providers to seek additional privacy protections and enter into HIPAA-compliant business associate agreements with vendors.
  • Cost-sharing and Copayments: In general, routinely waiving or reducing the cost-sharing obligations for Federal health care program beneficiaries may implicate the Federal anti-kickback statute and civil monetary penalty laws.  However, the HHS Office of Inspector General (OIG) released a policy statement  that states that the COVID-19 pandemic has created unique situations in which such waivers or reductions may be necessary.  The policy statement includes notice that the OIG will not impose sanctions on physicians for waiving amounts owed as long as the following conditions are met:
    1. The cost-sharing obligation must be related to telehealth services furnished consistent with the then-applicable coverage and payments rules; and
    2. The telehealth services are furnished during the time period subject to the COVID-19 public health emergency declaration.

The enforcement waiver does not require a physician to waive or reduce cost sharing obligations.  Physicians and other practitioners are still expected to comply with all applicable legal authority regarding billing and claim submission, as well as all other Federal, state, and local laws and regulations in effect.

The OIG notes that the waiver will remain in effect until the COVID-19 public health emergency that was declared on January 31, 2020 ends but it reserves the right to withdraw or modify the policy statement at any time.

Powers will continue to monitor the situation closely and will provide updates as they come in.  Please contact Rebecca Burke (Rebecca.Burke@powerslaw.com) or Megan La Suer (Megan.LaSuer@powerslaw.com) or the Powers’ attorneys with whom you work if you have any questions.