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Legal Insights and Perspectives for the Healthcare Industry

CMS issued program instructions on March 17 (through a Fact Sheet and FAQ) to implement the Coronavirus Preparedness and Response Supplemental Appropriations Act (CPRSAA), which was enacted on March 6 in response to the coronavirus (COVID-19) crisis. Telehealth and other healthcare stakeholders have been waiting for these program instructions to be released to determine how CMS will fully implement the Medicare telehealth waiver.

Traditionally, under the Medicare program, professional telehealth services are restricted by statute to originating site locations (defined generally as healthcare facilities and physician offices) that are located in rural areas or outside of Metropolitan Statistical Areas (MSAs). Medicare beneficiaries generally would not be allowed to receive telehealth services in their home. CPRSAA waived both of these requirements, enabling Medicare beneficiaries across the country (regardless of urban or rural location) to receive telehealth services, including in their home, from a doctor in a remote location directly through their smart phone or computer.

The CMS program instructions offer a wealth of information on how healthcare professionals can begin treating Medicare beneficiaries and billing for those services. Treating Medicare patients remotely (for any illness regardless of the diagnosis, not just those related to COVID-19, including mental health counseling and preventative health screenings) is now permitted and, in fact, encouraged. This can be through existing permitted telehealth modalities as well as through smart phones using live audio/video technology. Medicare will pay for these services at the same rate it pays for in-person services.

Importantly, CMS announced several critical policies of enforcement discretion related to the waiver. First, CMS is exercising enforcement discretion related to the requirements under CPRSAA that a patient have an established relationship with a physician. CMS explains:

It is imperative during this public health emergency that patients avoid travel, when possible, to physicians’ offices, clinics, hospitals, or other health care facilities where they could risk their own or others’ exposure to further illness. . . To the extent the waiver (section 1135(g)(3)) requires that the patient have a prior established relationship with a particular practitioner, HHS will not conduct audits to ensure that such a prior relationship existed for claims submitted during this public health emergency.

This policy opens up significant possibilities for telehealth platforms and physician groups that already have extensive telehealth experience. It also creates new opportunities to other physicians, nurse practitioners, clinical psychologists, and licensed clinical social workers to furnish telehealth services to existing and new Medicare patients. This effectively opens up the waiver to all Medicare patients, regardless of whether a treating clinician has seen the patient previously.

CMS noted when issuing these program instructions that its implementation of the telehealth waiver not only allows Medicare beneficiaries who are particularly vulnerable to COVID-19 infection to obtain medical services from their home without having to incur the risk of going to a doctor’s office or hospital, it also lessons the burden on already over-stressed emergency departments, doctor’s offices and other healthcare facilities so they can better treat the most seriously ill among us.

The Office for Civil Rights (OCR) also announced a policy of enforcement discretion and penalty waivers for HIPAA violations when healthcare providers “serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency.” Although it remains important to protect patient privacy even in an emergency, in those situations in which technological lapses inadvertently reveal patient information, OCR is not planning to punish a provider for those violations.

In addition to the discretion announced by CMS and OCR, OIG issued a policy statement related to copay waivers. Although Medicare coinsurance and deductible requirements still apply to these telehealth services, OIG announced a decision to provide flexibility for providers to reduce or waive cost-sharing for telehealth visits. This should further amplify the federal government’s message for Medicare beneficiaries that they should not hesitate to receive medical care during the emergency.

The CMS/OCR/OIG waiver reflects a concerted and universal effort by the federal government to address COVID-19 head on with effective and accessible technology. In many ways, it synchs up the telehealth policies of states and commercial insurers with the Medicare program, which has historically lagged behind in telehealth policy. Although CMS makes a point of noting that this waiver is temporary, if telehealth is successfully furnished to Medicare beneficiaries during the crisis, this may create the momentum necessary to convince Congress to bring the Medicare telehealth benefit into the 21st Century and enact a permanent Medicare telehealth bill in the near future.