The Situation: In response to the novel coronavirus (COVID-19) public health emergency, on March 17, 2020, the Centers for Medicare & Medicaid Services ("CMS") utilized waiver authority under Section 1135(b) of the Social Security Act, as recently modified by the Coronavirus Preparedness and Response Supplemental Appropriations Act, to expand access to Medicare's telehealth benefit on a temporary and emergency basis.
The Action: As expanded by the CMS waiver, Medicare's telehealth benefits will temporarily cover telehealth services regardless of where the Medicare beneficiary or provider is located and across a broad variety of telecommunication devices, including smart phones. This waiver coincides with guidance from other federal agencies that expand the availability of telehealth services.Looking Ahead
: The CMS waiver provides flexibility to health care providers to treat Medicare beneficiaries via telehealth during this public health emergency.
Under its waiver authority under Section 1135(b) of the Social Security Act, as recently modified by the Coronavirus Preparedness and Response Supplemental Appropriations Act, CMS has relaxed the requirements of Medicare's telehealth benefits in response to the COVID-19 public health emergency. Prior to this waiver, telehealth services were eligible for reimbursement under Medicare only if a patient was located in a designated rural area and the services were provided in a medical facility.
Expanded Availability of Medicare Telehealth Services
Under the waiver, effective March 6, 2020, CMS temporarily waives enforcement of several of its long-standing limitations to Medicare coverage of telehealth, such that Medicare participating providers may now deliver services utilizing telehealth:
- Regardless of where the patient is located (e.g., in a rural area or in a medical facility, including a patient's home);
- Regardless of where the provider is located (e.g., at a home office, a traditional office, or other medical facility); and
- Across a variety of telecommunications devices that have audio and video capabilities, including smart phones.
CMS stated in announcements regarding the waiver that CMS will not conduct audits to ensure that such a prior relationship existed for telehealth claims submitted during this public health emergency. CMS has confirmed that telehealth services covered by the waiver will not be limited to services related to COVID-19 but may include any Medicare-covered telehealth service that is reasonable and necessary. These services can continue to be provided by a wide range of medical professionals, such as physicians, nurse practitioners, physician assistants, and certified nurse midwives. These telehealth services should be billed as if provided in-person, using the place of service code 02-Telehealth to indicate a service provided from a distant site. Medicare uses the facility payment rate for telehealth services. Other practitioners may furnish services as long as it is within their scope of practice; however, they may be required to use a different billing code. Some such practitioners are certified nurse anesthetists, licensed clinical social workers, clinical psychologists, registered dietitians, nutrition professionals, physical therapists, occupational therapists, speech language pathologists, and clinical psychologists.
Other Federal Agency Actions to Increase Availability to Telehealth Services
Other federal agencies have taken action to increase the availability of telehealth services during this public health emergency:
- In an FAQ, the U.S. Department of Health and Human Services ("HHS") Office for Civil Rights is temporarily waiving penalties under the Health Insurance Portability and Accountability Act ("HIPAA") for using non-HIPAA compliant communication technologies. For more information regarding that HIPAA waiver, please refer to the Jones Day Commentary, entitled " COVID-19 Emergency Efforts: HHS to Allow Non-HIPAA Compliant Telehealth Remote Communications."
- The HHS Office of Inspector General issued guidance stating it is temporarily permitting providers to reduce or waive telehealth cost sharing for telehealth visits paid by federal healthcare programs.
- The U.S. Department of Justice, Drug Enforcement Administration ("DEA"), Diversion Control Division, posted information on its website highlighting statutory exceptions to existing limitations for prescribing controlled substances by means of the internet (including telemedicine) in the event of an emergency declaration by HHS, thereby enabling DEA-registered providers to utilize telehealth for activities involving the prescribing of certain controlled substances without an in-person medical evaluation.
All such waivers, statutory exceptions, and enforcement discretion will last until the public health emergency declared by the HHS Secretary ends.
Two Key Takeaways
- Effective as of March 6, 2020 and continuing until the COVID-19 public health emergency ends, CMS has exercised its waiver authority to broaden access to Medicare telehealth services by allowing Medicare beneficiaries to receive any Medicare telehealth service regardless of the location of the beneficiary or the provider.
- This waiver adds to the growing list of actions that federal agencies are taking to respond to the COVID-19 public health emergency by expanding access to telehealth services.
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