HHS Acts to Support Telehealth Services in Response to COVID-19: Six Key Takeaways

March 18, 2020

UPDATE – April 10, 2020 – Since publication of this alert, McGuireWoods published a new alert on April 9, 2020, on this topic: “COVID-19: Consolidated Medicare Telehealth Expansion Update.” Please refer to the April 9 alert as some of the information set forth in this alert has changed since its publication.

The unprecedented public health emergency created by the coronavirus disease (COVID-19) has sparked action by the U.S. government to ensure greater access to healthcare via telehealth services, especially for high-risk Medicare beneficiaries, while simultaneously limiting the spread of COVID-19.

Traditionally, Medicare beneficiaries may receive telehealth services as a Medicare-covered service only if:

  1. the beneficiary is in a qualifying rural area;
  2. the beneficiary receives services at one of eight types of qualifying originating sites;
  3. the services are provided by one of ten categories of distant site practitioners eligible to furnish and receive Medicare payment for telehealth services;
  4. the beneficiary and distant site practitioner communicate via an interactive audio and video telecommunications system that permits real-time communication between them; and
  5. the CPT/HCPCS code for the service is on the list of covered Medicare telehealth services.

In response to the COVID-19 outbreak, the Centers for Medicare & Medicaid Services (CMS) has relaxed some of the traditional requirements in connection with Medicare reimbursement for telehealth services. Here are six key takeaways regarding CMS’ and other federal agencies’ current COVID-19 responses to expand available telehealth services for Medicare beneficiaries:

  1. CMS expanded the types of patients and care settings eligible for telehealth reimbursement. As noted above, Medicare beneficiaries generally can receive reimbursable telehealth services only if they are located in a rural area and provided at certain originating sites of care (e.g., in a medical facility). However, CMS has now expanded coverage and reimbursement for telehealth services rendered on or after March 6, 2020, by waiving the “eligible originating site” requirement such that telehealth services can now be provided in all care settings, including a patient’s home.

    Although statutory language provides that a Medicare beneficiary is eligible for reimbursable telehealth services under this expanded waiver only if such beneficiary had a Medicare-paid service from someone in the provider’s practice in the last three years, the U.S. Department of Health and Human Services (HHS) stated that, during this public health emergency, to the extent any telehealth service requires a patient to have a prior established relationship with his or her provider, HHS will not conduct audits to ensure such prior relationship existed (i.e., reimbursement is available for new and established patients). Certain state licensure laws require or have been interpreted to require an established provider-patient relationship prior to the rendition of certain telemedicine services, including the ordering of prescription drugs. Therefore, before rendering services to new patients via a telemedicine or telehealth encounter, providers should confirm that they are abiding by the limitations of state law. More information on providing Medicare-covered telehealth services during the COVID-19 outbreak is available in this CMS FAQ guidance.

  2. CMS reminded providers of the options for telehealth, virtual check-ins and e-visits that are reimbursable. CMS published a fact sheet that identifies the most common HCPCS/CPT codes for reimbursable telehealth services. The full list of covered Medicare services that are reimbursable when furnished via telehealth are set forth at on CMS’ website. CMS’ fact sheet also provides guidance regarding other options for the delivery of telemedicine services, including virtual check-ins and e-visits for established patients. CMS’ FAQ guidance includes additional details on providing telehealth, virtual check-ins and e-visits.

  3. Providers must submit individualized requests for 1135 waivers to a State Survey Agency or CMS Regional Office. Although CMS’ recent publications appear to characterize the expansion of available telehealth services under the 1135 waiver as a blanket waiver of some of the traditional telehealth requirements delineated above, based on conversations with CMS representatives, it appears CMS is still requiring each healthcare provider to submit requests to operate under the authority of this 1135 waiver to either the applicable State Survey Agency or CMS Regional Office. A provider can make such a request by sending an email to the CMS Regional Office in the applicable provider’s service area, or by calling the applicable State Survey Agency or CMS Regional Office. Information on each provider (e.g., provider name, type, address, Medicare provider number, contact person and contact information), the justification for requesting the waiver and the type of relief the provider is seeking will be required. The email addresses for each of the CMS Regional Offices are found on CMS’ website.

  4. OCR announced an exercise of HIPAA enforcement discretion in connection with the good faith provision of telehealth. On March 17, 2020, the HHS Office for Civil Rights (OCR) issued a notification of enforcement discretion for telehealth remote communications during the COVID-19 public health emergency. In the notice, OCR recognized that some of the remote communication technologies that providers use to connect with patients to provide telehealth services may not be fully compliant with HIPAA. OCR indicated, however, that it will exercise enforcement discretion by not imposing any penalties for noncompliance with regulatory requirements under HIPAA in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency. OCR noted in its announcement that the enforcement discretion applies to all telehealth services rendered during this time, regardless of whether such telehealth services are specifically related to the diagnosis and treatment of COVID-19.

  5. OCR indicated that providers can use certain non-public-facing remote technologies for telehealth services. In the March 17, 2020, notification, OCR stated that providers who furnish telehealth services must use non-public-facing audio and video telecommunication technologies with patients, such as Apple FaceTime, Facebook Messenger video chat, Google Hangouts video or Skype. Providers should not use public-facing telecommunication technologies — such as Facebook Live, Twitch or TikTok — to communicate with patients, as communications on these social platforms are shared widely and are not person-to-person only. OCR encouraged all telehealth providers to use the most secure technology available and to enter into proper business associate agreements with technology vendors whenever possible. However, consistent with its exercise of enforcement discretion, OCR emphasized that it will not impose penalties against covered healthcare providers for the lack of a business associate agreement with video communication vendors. OCR recommended that providers notify patients that any unapproved third-party applications potentially introduce privacy risks, and suggested that providers enable all available encryption and privacy modes when using such applications. More information about the OCR’s announcement on remote communications for telehealth services can be found here.

  6. OIG issued a policy statement on forgoing sanctions for reducing or waiving Medicare beneficiaries’ cost-sharing obligations. On March 17, 2020, the HHS Office of Inspector General (OIG) issued a policy statement notifying healthcare providers that it would not enforce administrative sanctions on providers who reduce or waive Medicare beneficiaries’ cost-sharing obligations (i.e., co-payments and deductibles) for telehealth services furnished during the COVID-19 outbreak.

CMS recommends that providers inform their Medicare patients that telehealth services are available. The above summary relates to the provision and reimbursement of telehealth services furnished to Medicare beneficiaries, but information as to reimbursement for telehealth services by state Medicaid programs and commercial payors is still outstanding. However, CMS notes in its telehealth FAQ sheet that “[s]tates have broad flexibility to cover telehealth through Medicaid” and that “[n]o federal approval is needed 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.”

Various federal government agencies, including CMS, continue to release and publish guidance and waivers in connection with the nation’s COVID-19 response. As the COVID-19 situation continues to evolve, CMS encourages all providers to monitor the Centers for Disease Control and Prevention website for up-to-date information and resources and to contact local health departments when needed.

Please contact the authors of this alert with any questions and for additional guidance on how other COVID-19 considerations may impact healthcare providers. McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial COVID-19-related business and legal issues.