As the novel coronavirus outbreak continues, the federal government and commercial health insurers have taken significant steps to increase Americans’ access to treatment and testing. In the past week, the federal government and private insurers have issued a number of guidance documents expanding coverage and payment requirements in an effort to minimize the spread of the virus.
As with any changes in coverage and reimbursement, healthcare providers offering telehealth services should carefully review these changes and take steps to ensure that all regulatory and coverage requirements are met prior to submitting claims for reimbursement.
I. Medicare
On March 6, 2020, the bipartisan Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020 (“Coronavirus Appropriations Act”) was signed into law authorizing federal spending to combat the ongoing coronavirus outbreak in the United States. This Act, among other things, gives the United States Department of Health and Human Services’ (“HHS”) secretary the authority to temporarily waive certain Medicare requirements for telehealth services.
The Centers for Medicare and Medicaid Services (“CMS”) currently reimburses a limited set of telehealth services provided to Medicare beneficiaries subject to certain criteria under section 1834(m) of the Social Security Act. Generally, the patient receiving telehealth services must be located at one of eight “originating sites”, which include hospitals, physicians’ offices, and rural health clinics.
In addition, the originating site must meet certain geographic requirements which have essentially limited the availability of telehealth to patients in rural areas. These requirements have long posed a hurdle to the expansion of telehealth despite the industry’s demand for lessened restrictions.
However, with the rapid spread of the coronavirus and the possibility of facing large scale isolations and quarantines, lawmakers have signaled their willingness to expand access to telehealth to fight against this public health crisis.
Within the Coronavirus Appropriations Act is the Telehealth Services During Certain Emergency Periods Act of 2020, which sets forth the waiver authority for the secretary of HHS regarding the certain telehealth requirements. Under the Telehealth Services During Emergency Periods Act, the secretary is authorized to temporarily waive the originating site and geographic requirements for telehealth services provided to Medicare beneficiaries located in an identified “emergency area” during an “emergency period” when provided by a qualified provider.
To qualify for the waiver, the provider must have treated the patient within the previous three years or be in the same practice (i.e., as determined by tax identification number) of a practitioner who has treated the patient in the past three years.
The bill also lessens the telecommunications requirements by allowing Medicare beneficiaries to receive telehealth services via their smartphones (i.e., telephones that allow for real-time, audio-video interaction between the provider and the beneficiary). Because the federal government has declared a nationwide public health emergency as a result of the coronavirus, the waiver will apply across the country until there is no longer a nationwide public health emergency.
II. Medicaid
With the passage of the Coronavirus Appropriations Act, Congress signaled its intent for Medicare to reimburse providers for telehealth services provided to existing patients so long as the nation remains subject to a public health emergency as a result of the coronavirus. However, Medicaid reimbursement for telehealth continues to vary state by state. On March 6th, U.S. Representatives Fred Upton, R-MI, and Joe Kennedy, D-MA, penned a letter asking CMS to encourage states to cover all telemedicine services and work with them to expand their capability to do so in an effort to prevent the spread of the coronavirus. While CMS has published a fact sheet of coverage and benefits relating to the coronavirus for Medicaid and CHIP, reimbursement remains subject to state-specific requirements.
III. Commercial Payors
Commercial payors are taking steps to further expand access to telehealth services by lessening members’ out-of-pocket costs. For example, Aetna and several Blue Cross Blue Shield plans have waived telehealth visit copays. Blue Cross Blue Shield of North Carolina has taken things one step further by temporarily covering telehealth services at the same rate as an in-person office visit. Put simply, the general consensus throughout the health care industry is that the increased access to telehealth services during this public health emergency is crucial to managing the outbreak.
IV. Considerations to Keep in Mind
As CMS, state Medicaid agencies, and commercial insurers take steps to expand telehealth coverage and reimbursement, health systems and practices are increasingly likely to turn to telehealth in the fight against the coronavirus. When expanding telehealth practices, providers should keep the following in mind to ensure their telehealth practice remains in compliance as efforts to expand services continue to evolve:
1. Licensure. Physicians must continue to hold appropriate licensure to provide services to patients in other states and follow the applicable licensure and telehealth laws;
2. Scope of Practice. Be mindful that applicable state Practice Acts for non-physician practitioners remain in effect and take steps to ensure that telehealth services are rendered only by appropriately licensed and supervised practitioners;
3. Credentialing. Physicians rendering services must hold appropriate credentialing at hospitals, when applicable;
4. Controlled Substance Prescribing. Any prescribing of controlled substances must be done in accordance with the telemedicine limitations set forth under the Ryan White Act;
5. Data Privacy and Security. The Coronavirus Appropriations Act makes no mention of the Health Insurance Portability and Accountability Act (“HIPAA”) or its implementing regulations. Providers should continue to provide telehealth services via HIPAA-compliant telecommunications methods; enter into business associate agreements with technology vendors, when applicable; and comply with the minimum necessary standard for disclosures of protected health information;
6. Fraud, Waste, and Abuse Risks. As with any change or expansion of coverage and benefits, be sure to carefully consider all fraud, waste, and abuse implications. The Anti-Kickback Statute, Stark Law, and Beneficiary Inducement prohibitions continue to apply.
About the Authors
Julian Rivera, Partner at Husch Blackwell
Julian represents healthcare providers and healthcare technology companies on a wide range of regulatory compliance, operations, transactions, litigation, and business matters.
Renee Zerbonia, Healthcare Associate at Husch Blackwell
Renee works with healthcare providers and others on Medicare and Medicaid reimbursement, Anti-Kickback and Stark compliance, healthcare fraud and abuse issues, and other matters.
Tamar E. Hodges, Healthcare Associate at Husch Blackwell
Tamar’s experience includes nursing on medical-surgical and intensive care units at Level 1 trauma centers, coordinating risk management for a pediatric academic medical center and serving on hospital ethics committees. She understands regulation from all perspectives: drafting, implementation, and enforcement.
