Telehealth Services Waiver Implemented, Expanding Access for Medicare Beneficiaries in Response to COVID-19

The Department of Health and Human Services ("HHS") announced on March 17 that it has expanded telehealth benefits for Medicare beneficiaries, allowing them to receive care via telehealth services from home. This waiver is in response to COVID-19 and was authorized by the "Telehealth Services During Certain Emergency Periods Act of 2020 ("Act")."

What's new?

The waiver:

• Allows Medicare beneficiaries in any geographic location to receive telehealth services;
• Removes the restrictions on where the patient must be located to receive services by telehealth, and allows the provider to bill for those professional services even if the patient is located in the patient's home. Previously, the patient had to be in a medical facility and the patient's home did not qualify as an "originating site." While only a qualifying medical facility can bill an originating site facility fee, the professional billing can occur regardless of the patient's location;
• Provides for reimbursement for telehealth visits for covered professional services at the same rate as in-person visits;
• Includes that patients will have the same copays and deductible obligations, though it is reported that the Office of Inspector General ("OIG") will allow providers flexibility to waive or reduce fees; and
• Applies to all payment for all telehealth professional services that Medicare covers for in-person visits under its Physician Fee Schedule, not just those services specifically associated with COVID-19. (The list of reimbursable telehealth codes is available here)

In addition, for services provided during this public health emergency period, HHS indicated that it does not plan to conduct audits to confirm pre-existing provider relationships that would normally be required for reimbursement of services provided via telehealth.

Overall, this is a monumental expansion of access to (and payment for) professional telehealth services for the Medicare beneficiaries.

What's the same?

The waiver does not expand (or otherwise change) the scope of types of providers eligible for reimbursement under Medicare. This is a robust list, although not every provider type qualifies. Eligible provider types include physicians, nurse practitioners, physician assistants, clinical psychologists, clinical social workers (for specified services only), and registered dietitians, among others.

While all professional services under the physician fee schedule may now be reimbursed by Medicare, even if provided via telehealth, this will not apply to services reimbursed in some other way (e.g. critical access hospital reimbursement other than Method II billing).

As noted above, the billing codes for eligible telehealth services remain the same.

The waiver does not change the modality that can be used to provide telehealth services. The existing coverage for virtual check-ins and e-visits remains in place, and those are still limited to established patients only. The waiver did not expand reimbursement for these codes or services.

A chart at the bottom of the Medicare Telemedicine Health Care Provider Fact Sheet may be useful for providers seeking reimbursement and for differentiating which requirements and waivers apply to which type of service.

Don't Throw Best Practices out the Window

Finally, keep in mind that the compliance, legal requirements, and practice issues encountered by telehealth service programs continue to apply (unless also waived or otherwise altered due to the public health emergency). The measures in place that support compliance and quality are not irrelevant. These include requirements governing:

• State professional and telehealth licensure and credentialing (Note that DHHS issued a waiver that purports to authorize licensed healthcare professionals to provide services in states other than their home license state, but it is unclear how that will be implemented or what coordination may be needed with state licensing authorities to make this possible in a compliant way. The waiver of this requirement will be subject to its own separate update and is posted at the DHHS site here)
• Anti-Kickback Statute compliance and other fraud, waste, and abuse risks
• Recordkeeping and documentation
• Data privacy and security
• Legend drug and controlled substance prescribing
• Scope of practice for the applicable provider and related standards of care

As the COVID-19 situation continues to unfold, we are continuously monitoring updates and are here to help. For more information, contact your Quarles & Brady health law attorney or:

• Katea M. Ravega: (317) 399-2849 / katea.ravega@quarles.com
• Rachel L. Dykema: (608) 283-2628 / rachel.dykema@quarles.com