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Telehealth has been in existence for many years, but third-party payor limitations on reimbursement have limited its growth in hospitals and physician practices. Today’s challenges presented by the novel coronavirus are changing the perspective of federal and state public health authorities as to the benefits of telehealth in responding to COVID-19.
During this crisis, telehealth is proving itself to be uniquely positioned to assist health care professionals and the public with the treatment of nonurgent, chronic health care issues while easing the pressures facing emergency rooms and clinics. In addition, telehealth is being effectively used to prescreen individuals by health care professionals so they can better triage potential patients and reduce their exposure to individuals who may have been exposed to COVID-19 or other illnesses.
For many years, Medicare’s telehealth reimbursement policies limited it to those situations where a patient received services in an “eligible originating site.” To qualify, an originating site had to be located in either a county outside a metropolitan statistical area or a rural health professional shortage area in a rural census tract. The location where the patient was receiving telehealth services also needed to be a medical facility, like a physician office, a hospital, a critical access hospital, a skilled nursing facility, or another type of medical facility. Put simply, the patient needed to be in a rural area and had to receive services in a medical facility. With the exception of patients with end-stage renal disease receiving home dialysis, patients were not able to receive telehealth services in their home.
With the passage of the Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020, Congress significantly expanded the landscape of telehealth by allocating $500 million to telehealth reimbursement and providing the Centers for Medicare and Medicaid Services (CMS) the ability to grow telehealth coverage. The new law also amended section 1135 of the Social Security Act by granting the Department of Health and Human Services (HHS) the ability to issue waivers that could remove traditional limitations on telehealth services during a national emergency.
CMS exercised this authority on March 17, 2020 and expanded the scope of telehealth services that would be reimbursed during the COVID-19 emergency. Beginning on March 6, 2020, health care providers can bill Medicare for a broad range of telehealth services without regard to the treatment or diagnosis of the patient. Reimbursement will be paid under the Physician Fee Schedule at the same rate as in-person services. Further, Medicare beneficiaries can receive telehealth services from their home or another facility, and smartphones (and/or similar devices) can now be used to provide telehealth services provided they have two way audio/video capability in real-time.
Although this is an ever-changing area of the law, the majority of states still seem to be restricting Medicaid reimbursement for telehealth services. We will continue to monitor developments, however, as some state leaders appear to be signaling an inclination to expand telehealth services in light of the COVID-19 emergency.
Licensure and supervision are still another matter. While the HHS 1135 waiver addresses the issue of out-of-state practitioners being able to provide services to patients in states where they are not licensed, states have been slow to open the door to this practice. The HHS 1135 waiver requires those practicing across state lines to hold an equivalent license from another state, but state law still controls in this area, and practitioners need to be particularly careful to know what position their state has taken in this regard.
OCR and HIPAA – The Office for Civil Rights has agreed not to impose penalties on health care providers who utilize telehealth platforms or other remote communication technology that is not fully HIPAA compliant and/or do not have an executed business associate agreement. "A covered healthcare provider that wants to use audio or video communication technology to provide telehealth to patients during the COVID-19 nationwide public health emergency can use any nonpublic facing remote communication product that is available to communicate with patients." Providers should continue to monitor state developments because these will vary and still be in effect.
OIG and Routine Reductions/Waivers of Cost-Sharing Arrangements – HHS’s Office of Inspector General announced that it will not enforce its prohibition on routine reductions or waivers of co-pays and other cost-sharing requirements if health care professionals decide to reduce or waive cost-sharing for telehealth services during the COVID-19 emergency.
DEA and Prescriptions – Drug Enforcement Administration-registered health care professionals may issue prescriptions for controlled substances to patients with whom they have not had an in-person visit. The prescription, however, must be for a legitimate medical purpose and the health care professional and the patient must have a telemedicine communication that is conducted via two-way, interactive audio-visual communication in real time. In addition, the health care professional must be acting in accordance with applicable federal and state law and in his/her normal course.
FDA and Devices – The Food and Drug Administration will allow manufacturers of certain FDA-cleared non-invasive devices to “expand the availability and capability of non-invasive remote monitoring devices to facilitate patient monitoring while reducing patient and healthcare provider contact and exposure to COVID-19 during the pandemic.” These devices can be used to measure body temperature, respiratory rate, heart rate and blood pressure.
As demand for more intensive treatment related to COVID-19 increases, health care systems, hospitals, accountable care organizations, federally qualified health centers, and physician practices should consider implementing telehealth as part of their treatment protocols. Below, we have provided some suggested strategies for providers to consider.
As mentioned previously, this is an ever-changing area of the law given the challenges many of our health care providers and health systems are struggling with during this unprecedented emergency. We will continue to monitor and update this site as new information becomes available. In the meantime, we also want to provide you with the following links to some of the recent guidance issued regarding telehealth.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.