CMS and HHS Provide Telehealth Waivers Due to COVID-19 Public Health Emergency

Yesterday, the Centers for Medicare & Medicaid Services (CMS) and the Department of Health & Human Services (HHS) announced new measures to expand access to telehealth services during the COVID-19 public health emergency.

CMS announced a new policy vastly expanding Medicare coverage for telehealth visits starting March 6, 2020. Previously, telehealth visits were only covered by Medicare if the beneficiary was in a designated rural area and received the services in a qualified originating site such as a clinic or a hospital. Under the new policy, beneficiaries across the country can receive a wide range of services via telehealth from any healthcare facility or home, regardless of whether they reside in a rural area.

HHS’s Office for Civil Rights (OCR) also announced that it will waive potential HIPAA penalties related to telehealth services that are provided in good faith during the emergency period. The services may be for any diagnostic or treatment purpose, even those unrelated to COVID-19, and can now be provided through popular apps such as Apple FaceTime and Skype. Lastly, HHS’s Office of the Inspector General (OIG) announced that physicians and practitioners can reduce or waive beneficiary cost-sharing requirements for telehealth visits paid by federal healthcare programs.

Below are some key takeaways from the announcements:

1. Waiver of rural and originating site requirements.

CMS has waived the rural and originating site requirements for Medicare beneficiaries. Prior to this announcement, telehealth visits were only available to Medicare beneficiaries in designated rural areas if they received the services in a qualified originating site. Now, Medicare will reimburse telehealth visits provided to patients in all areas of the country—not just in rural settings—and patients can receive the services in any healthcare facility, as well as in the patient’s home.

2. Reimbursement.

CMS maintains a list of services that are normally furnished in-person that may also be furnished via telehealth. Medicare pays the same amount for telehealth services as it would if the service were furnished in person under the Physician Fee Schedule. The claim should reflect the same HCPCS code as the in-person service and the designated Place of Service (POS) code 02-Telehealth. For services that have a site of service payment differential (different rates for office versus facility), Medicare uses the facility payment rate for telehealth services.

Billing for Medicare telehealth services is limited to professionals—not facilities such as hospitals and nursing homes.  If a beneficiary receives a telehealth service in a healthcare facility, the facility can only bill for the originating site facility fee, which is reported under HCPCS code Q3014. During the emergency period, the facility does not have to be in a designated rural area or health professional shortage area to charge a facility fee.

Providers can bill immediately for dates of service starting March 6, 2020.

3. Qualified providers.

The qualified providers who can furnish telehealth services remain unchanged under CMS’s new policy. Qualified providers include physicians, nurse practitioners, physician assistants, and certified nurse midwives. Other practitioners such as certified nurse anesthetists, licensed clinical social workers, clinical psychologists, and registered dieticians or nutrition professionals may also furnish services within their scope of practice and consistent with the Medicare benefit rules that apply to all services.

4. Providers’ discretion to reduce or waive cost-sharing requirements.

Medicare coinsurance and deductibles would generally still apply to telehealth services. However, the OIG is providing flexibility for providers to reduce or waive cost-sharing for telehealth visits paid by federal healthcare programs. The OIG will not bring enforcement actions under the Federal Anti-Kickback Statute or the beneficiary inducement provisions of the Civil Monetary Penalty Law for waiving or reducing such cost-sharing during the emergency period, so long as all applicable CMS payment and coverage rules are still met.

5. No prior established relationship necessary.

To the extent that CMS’s waiver requires that a Medicare beneficiary have a prior established relationship with a particular practitioner, CMS has announced that HHS will not conduct audits to ensure that such a prior relationship existed for claims submitted during this public health emergency.

6. Not limited to COVID-19-related services.

The waiver broadens telehealth flexibility regardless of a patient’s diagnosis. However, Medicare telehealth services, like all Medicare services, must still be reasonable and necessary under Section 1862 of the Social Security Act.

7. Waiver of HIPAA penalties.

During the emergency period, providers can offer telehealth services through a wider range of technologies, which may not be HIPAA-compliant. As per OCR’s Notice, covered healthcare providers can use any non-public facing remote communication product that is available to communicate with patients. This includes popular video chat applications such as Apple FaceTime, Facebook Messenger Video Chat, Google Hangouts Video, and Skype. OCR will not impose penalties for HIPAA violations in connection with the good faith provision of telehealth services using such technologies during this period. However, providers should notify patients of potential privacy risks with the use of these applications and should enable all encryption and privacy modes when available.

Although CMS’s new policy is limited to Medicare, President Trump has urged all insurance companies to expand and clarify their telehealth policies to help prevent the spread of COVID-19. CMS has also issued separate guidance encouraging Medicare Advantage plans to remove barriers to care, including telehealth services.

As per CMS’s guidance, Medicare Advantage plans may waive or reduce enrollee cost-sharing for telehealth benefits so long as the waiver or discount is provided to all similarly situated plan enrollees on a uniform basis. Medicare Advantage plans may also provide access to Medicare Part B services via telehealth in any geographic area and from a variety of places, including a patient’s home. These recommendations are voluntary; however, many health insurers have already expanded telehealth benefits and pledged to eliminate out-of-pocket costs for enrollees under both commercial and Medicare Advantage plans.