As public health officials and policy makers respond to the coronavirus disease 2019 (“COVID-19”) pandemic, increased attention has been paid to ways in which modern technology—including telehealth technologies—can be deployed to increase the health care system’s capacity and permit treatment in ways that minimize exposure. Along these lines, Congress enacted the “Telehealth Services During Certain Emergency Periods Act of 2020” as part of the $8.3 billion emergency relief legislation recently signed into law. In connection with President Trump’s declaration of a national emergency, the statute authorizes the United States Secretary of the Department of Health and Human Services (the “Secretary”) to waive certain Medicare coverage restrictions for telehealth services in areas impacted by the outbreak of COVID-19. On March 17, Secretary Alex Azar took advantage of this temporary authority. Following the Secretary’s activation of the waiver, CMS provided guidance on implementation to providers to encourage the use of telehealth as well virtual check-ins and e-visits.[1] Generally, Medicare fee-for-service (“FFS”) beneficiaries are only eligible to receive covered services via telehealth that satisfy certain statutory requirements in the Social Security Act (“Medicare telehealth services”) concerning the locations, technology, providers, and services involved. [2] In relevant part, under the “originating site” requirement, the Medicare patient must be at an approved type of facility (e.g., a doctor’s office, skilled nursing facility, or hospital), which is located in a rural health professional shortage area (“HPSA”) (unless an exception applies).[3] In addition, telehealth services must be provided via synchronous, two-way, audio-video communication (except in the case of a demonstration program in Alaska or Hawaii, which may be via asynchronous technologies). Telehealth treatment is typically facilitated through the use of an originating site’s telecommunications equipment, as opposed to patient-owned technology like a smart phone, as Medicare beneficiaries generally cannot receive telehealth services from their own home. The Telehealth Services During Certain Emergency Periods Act of 2020 loosens these restrictions for all Medicare beneficiaries, allowing the Secretary to waive the “originating site” and communication device requirements, meaning that telehealth consultations between a provider and a Medicare FFS patient may now take place while the patient is in his or her home or at a healthcare facility, regardless of whether the patient is located in a rural area, and via the patient’s smart phone, as long as the communication is a live, two-way, audio-video communication.[4] Provider facilities may now take advantage of this opportunity to expand their use of telehealth as a tool to fight the COVID-19 outbreak given the Secretary’s activation of the waiver, which takes effect retroactively to March 6, 2020. Providers that do so should keep in mind that the Medicare reimbursement standards, aside from the originating site restrictions, still apply to any services provided via telehealth, as do all applicable legal requirements, such as medical staff credentialing requirements and state-level scope of practice standards. However, as to the latter, the federal emergency declaration allows for a waiver of the federal requirement, so long as the clinician’s certification is similar to that of the state in which the beneficiary resides. Telehealth Waiver Provisions for Fee-for-Service Medicare: For additional information, please see CMS’s Telemedicine Health Care Fact Sheet and Medicare Telehealth Frequently Asked Questions (both issued 3/17/20). Other Payor Guidance * * * For further information, please contact Andrea Frey in San Francisco, Jeremy Sherer in Boston, Marty Corry or Monica Massaro in DC, or your regular Hooper, Lundy & Bookman contact. [1] For further information, please see the Fact Sheet and FAQ issued by CMS, which includes details on billing and coding of telehealth services under the waiver.UPDATED 3/18/20: Congress Enables HHS to Relax Telehealth Restrictions to Help Fight COVID-19
[2] This statement is specific to “Medicare telehealth services” and does not relate to other digital health services that CMS covers as “communication technology-based services.”
[3] 42 C.F.R. § 410.78.
[4] See OCR’s Notification of Enforcement Discretion for telehealth remote communications during the COVID-19 nationwide public health emergency for further information.Professional
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