Marti Arvin Executive Advisor at CynergisTek joins us to talk about compliance consideration and ensuring that compliance concerns don’t slip around telehealth and the coronavirus (COVID-19) outbreak. Marti breaks down the recent announcements from DHHS, OCR, and CMS and discusses what was in place pre-COVID and what has changed with the COVID crisis.
Links to stories:
You may read the latest blog post on the subject at https://insights.cynergistek.com/blog/telehealth-and-coronavirus-compliance-considerations-to-think-about
OCR Allows Internet Apps for Telehealth During COVID-19 Emergency blog post: https://insights.cynergistek.com/blog/ocr-allows-internet-apps-for-telehealth-during-covid-19-emergency
Welcome to CTEK Voices: The Risk Perspective. I’m your host Lauren Frickle.
Today, I’m joined by Marti Arvin Executive Advisor at CTEK. Marti is considered a subject matter expert in health care compliance and today she will be talking about compliance consideration around telehealth and the coronavirus.
Hi Marti, thanks for joining us today!
Thank you, Lauren and hello everyone.
I know these are very trying times for all of us in healthcare and it’s often that we let some compliance concerns slip. So, I hope what you’ll take away from this podcast is just some considerations to think about as our environment changes particularly around the telehealth services and the things that have changed under the COVID crisis. We have seen multitudes of announcements coming out from DHHS, OCR, and CMS and staying on top of those can be a bit challenging. So, I want to talk a little bit about sort of what was in place pre-COVID and what has changed with the COVID crisis.
When you talk about telehealth, one of the significant changes was the location. The originating site under Telehealth is the site where the patient is located. And pre-COVID, the patient had to be located for Medicare Services, had to be located in a rural health area, and the service had to be done with the patient physically either in a hospital in a critical access or a few other specified locations. They could not be in their home. Well CMS has lifted those restrictions and have now said that you could provide a telehealth service to patients in their home and that’s good news because that means the patient doesn’t have to travel to the provider site and doesn’t have to risk exposing themselves or others to the coronavirus. So again, that’s good news on the originating site.
A question that’s still not quite clear is what distant site can be used for the Telehealth service. The distant site is where the actual provider of the telehealth service is located. And when you submit a claim there is what most of you know “the site of service indicator” and there was a sign of service indicator created specifically for Telehealth that is the site of service-0-2. So, you would either use that as your side of service on the claim, but a question remains as far as the address to use on the claim. Normally providers was you would use the address that they enrolled with Medicare. So, if they submitted their practice clinic location as the address that they enrolled in Medicare that would be the address they would use on the claim.
Providers can enroll under more than one address but a provider it would normally only use their home address if that is where they perform services on a routine basis. So, you might see a psychologist for example, that might have a home office and that’s where they routinely see patients so their home address might be the address under which they enrolled in Medicare. But for many providers like the typical primary care provider, your oncologist, your orthopod, they have likely enrolled under their clinical practice address and perhaps an Ambulatory Surgery Center or a few others, but it’s very frequently not their home.
So, the question that still outstanding is what address are they to use on the claim? Obviously if they’re performing the telehealth service while they’re sitting in their office at their clinical practice that’s easy. But what if the provider themselves is at home and that is not a location at which they normally provide services. Would it be appropriate to put their home address on the claim or should they put the address of their normal clinical practice location on the claim? And if they put that location of clinical practice as the address, but they actually perform the service while they were at their home is their potential that that could be viewed as a false claim. And when we talk a little bit later about the waiver of co-pays and deductibles all explained a little bit more about why that might be an issue.
So, we’ve talked a little bit about the location. Let’s talk now about the services that can be provided through telehealth and telemedicine. There are services that were previously available for telehealth. And those are still services that you can provide through telehealth. You can locate those on the CMS website if you’re interested in learning more about what those services are, but since the COVID crisis there have been additional services that have been added and that can be performed using telehealth and those were announced by the CMS director on March 30th.
And I would just encourage you to keep an eye on the CMS website to see if they again continue to expand that. So we have the additional 80 services that were announced on March 30th, but there could be more we just have to kind of keep an eye out for that and stay on top of it to ensure that we those services and update our providers to let them know that these other services can be provided via telehealth. One other thing that was changed on in the announcement on March 30th is the frequency limitations. For certain types of services, if they were provided via telehealth, you could only provide them one time within defined time periods and then for other services in order to bill one of the services via telehealth you had to have in-person visits it with some degree of frequency.
For example, nursing homes generally required that you have one face-to-face visit per month and then other services during the course of the month can be performed via telehealth. CMS also set aside those frequency restrictions for several services and allowed the services to all be performed via telehealth. And then finally four types of services prior to the COVID crisis to perform a telehealth service there are generally had to be an established relationship with the patient, you could not see new patients and at the beginning of the COVID crisis, CMS was clear that they would allow the telehealth service. That is the service where the provider and the patients are in a two-way communication real-time via video and audio could be performed with both new and established patients.
So again, the Telehealth service they said at the beginning of the crisis could be done with a new or established patient. When the director made her announcement on March 30th, she clarified that not only would that be true for the telehealth service, but that would be true for virtual check-ins and for e-visits.
So now any of those types of telemedicine services can be performed for either a new or an established patient. So again, this is all good news as it relates to the crisis. Now any of these waivers or these suspensions of the rules are only going to be in place so long as the National Emergency is in place and generally a National Emergency Declaration will last either until there’s an announcement that it’s no longer in place or 90 days, whichever comes first.
And we fully anticipate that if this current crises National Emergency Declaration goes beyond 90 days, then we’ll hear a new announcement extending it further for up to an additional 90 days. But keep in mind that if that 90 days expires then technically all of the things I just discussed are no longer in place. So, you need to stay on top of that and be well aware and make sure your providers understand once the National Emergency is over these changes no longer apply and they would be in violation of the telehealth rules.
That also ties to the waiver of co-pays and deductibles. CMS has also said that they will not pursue as an inducement any waivers of co-pays and deductibles for telehealth services. So, this means that providers can waive those co-pays or deductibles if they choose to and again, this is so long as the National Emergency is ongoing. And what OIG has said is that in order to qualify for No Enforcement Action, the Telehealth service has to have been provided in compliance with the applicable rules in place at the time and it has to be provided during the period of the National Emergency Declaration. So again, when you talk about the applicable rules in place at the time that goes back to my earlier conversation and discussion about the address for the distant site. If you’re required to provide the service at physically add an address where you’re enrolled in Medicare and you provided the service at your home yet, you submitted the address of your office, arguably that’s a false claim. It was not provided in compliance with the rules in place at the time and so you wouldn’t be able to avoid potential pursuit for waivers of co-pays or deductibles.
Now do I think OIG is going to focus on this? Probably not. But I just want you to be aware that it’s is an outstanding question one other area to think about when you talk about telehealth services is the licensure question. There has always been a question of whether or not a telehealth service could be provided to a patient in state “A”, when the provider was licensed in state “B”, and as a general premise, your licensure is at the location of the patient. So, if that patient is in state “A”, and you are in state “B” as the provider, and you’re not licensed in state a there’s been an argument that you might be practicing medicine without a license by providing that telehealth service to the patient that’s physically located in state “A”.
So, there have been much spend much work over the past few years to address this licensure question around telehealth well before the COVID-19 crisis. And one of the things now that we see with the crisis occurring is that CMS has said they will waive the requirement for the provider to be licensed in the state where the service is provided for federal health care programs for the services provided by physicians and non-physicians practitioners.
So, that might be good news but here may be other considerations that you have to think about. So, when you think about the licensure waiver the criteria that CMS has set out specific to Medicare is that the provider has to be enrolled in Medicare. They have to have a valid license in the state where they are, the service has to be provided to a patient in a state where the emergency is occurring to contribute to the relief efforts, and that service can be provided either in person or through telehealth services, and the individual cannot be excluded from participation in the federal health care programs.
Now, this is specific to Medicare. There are other considerations when you talk about Medicaid and commercial payers, and I’m going to talk about those in just a moment.
Another question that’s outstanding is scope of practice issues. So, CMS may have waived the licensure requirements, but the scope of practice to provide services for health care providers is normally handled by the state. So, when you look at physicians, there aren’t that many restrictions between states on the scope of practice for a physician.
However, that’s not true for other non-physician practitioners. So, for example, what a nurse practitioner can do in state “A” may be different than what a nurse practitioner can do in state “B”. So even if the licensure requirements are waived the scope of practice provisions may still be applicable. So again, while that service might have been waived for providing it through telehealth that doesn’t change the scope of practice limitations.
So, you need to remain cognizant of whether or not that service being performed via telehealth generally by the non-physician practitioners is within the scope of practice of the state where the patient is located. You can find more information about scope of practice issues and state laws around this by looking at the Federation of State Medical Boards website.
I’ve also drafted a blog on this topic, and you can find that at our website cynergistek.com and the link to the federal state Medical Board website is within that blog. So, if you read the blog, you’ll be able to very quickly link to that website.
Now, one of the final issues is Medicaid and commercial payers CMS is again providing some specific provisions for Medicare the licensure question they have applied to all federal payers. So that includes Medicaid, but the State Medicaid agencies and states generally control what happens with Medicaid. So again, you are going to need to look to the state laws for Medicaid to determine what may or may not be a service performed via telehealth and what you need to do and what you need to address regarding that.
State laws regarding Medicaid can be found through a link for the center for connected health policy and it may appear to be keeping that updated as states are responding to the COVID crisis. And again, I reference you back to the blog I’ve written on this topic because you can find that link to the Center for Connected Health from that blog.
Finally, for commercial payers that will be determined on a payer by payer basis. Many states over the past several years have published what are called Parity Laws and those Parity Laws require commercial payers to pay for telehealth services, but what they don’t do is specify by the obligations and restrictions on the provider that the commercial payer may impose in order for those telemedicine services to be provided.
So, you’re going to need to look to your state law and you’re going to need to look to the specific commercial payers’ website or any information they might be publishing to determine what may or may not be payable through telehealth services for that particular commercial payer.
And finally, what modalities can be used for telehealth services? Those were somewhat specified by Medicare pre-COVID and there have been some changes in some relaxations to the in the use of the enforcement discretion by the Office for Civil Rights. I’m not going to go into the details of that because you can find that specific information in a blog that was done by my colleague David Holtzman. Again, it’s also available as cynergistek.com along with his podcast specific to that issue.
I hope you found all of this helpful and I hope you found that in this time of Crisis CynergisTek continues to support you and keep you informed and partner with you for privacy information security and compliance concerns.
Thank you, Lauren.
Great, thank you, Marti, for that specific telehealth information and thank you, everyone, for listening.