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Things are changing rapidly in the current regulatory environment and that is true for telehealth as well. On March 13, 2020 the President declared the coronavirus pandemic a national emergency. On March 17, 2020, the Center for Medicare and Medicaid Services (CMS) issued fact sheet relaxing the requirements telehealth services to be billable to Medicare. That same day, CMS also provide a list of frequently asked questions (FAQs) on providing telehealth services under the current Public Health Emergency.
The expressed intent by CMS was to allow for a broader use of telehealth services so patients can avoid travel to a healthcare provider that might possibly expose them and others to the coronavirus.
Under the CMS rules for telehealth in place prior to the national emergency declaration, CMS would only pay for telehealth services if the Medicare beneficiaries was in a Rural Health Professional Shortage Area (HPSA), a county outside a Metropolitan Statistical Area (MSA), or a specific eligible site. The specific eligible sites were limited to specified conditions. The originating site or the site where the patient was physically located when the telehealth service was rendered needed to be a hospital (including a critical access hospital), a physician office, a rural health clinic, a federally qualified health center, a skilled nursing facility, a community mental health center, or a renal dialysis center in a hospital or critical access hospital. It could not be a patient’s home or other locations.
The fact sheet makes it clear that now patients can receive telehealth services in their home and there are no longer restrictions regarding the geographic areas where telehealth services can be provided. One outstanding issue is where the provider of the telehealth service can be located. The Medicare Claims processing manual says to use site-of-service 02 – telehealth on telehealth claims. But the address that is used on the claim must match to an address that is on the practitioner’s Medicare enrollment. If the service is provided in the practitioner’s home but that is not an address where the provider is enrolled as a location, he/she routinely practices from it is unclear whether the claim will be rejected. If the claim is submitted using the practitioner’s office address or another enrolled address but the service was actually provided from the practitioner’s home or another location, it remains to be seen if that would be considered a false claim.
The expansion of telehealth services is not simply to treat coronavirus symptoms but can be done for any service otherwise eligible for telehealth. The CMS fact sheet discusses three types of telemedicine services: telehealth visits, virtual check-ins, and e-visits. Prior to the March 17th announcement, for a telehealth visit to be billable to Medicare the provider had to have an established relationship with the patient. CMS initially indicated that no audits would be conducted to determine the established patient relationship for telehealth services. The limitation for an established relationship was subsequently lifted for virtual check-ins and e-visits in an announcement by CMS Director Seema Verma on March 30, 2020.
CMS has allowed telehealth services for office, hospital, and other visits under its 1135 waiver authority. The Director’s March 30th announcement also addressed an addition of 80 services that would be reimbursed when provided to Medicare beneficiaries through telemedicine. The announcement also indicated that for a number of services with frequency limitations or a requirement for at least one in-person visit within a defined period, those restrictions would be lifted during the waiver period.
The Department of Health and Human Services (HHS) also has allowed for the waiver of the beneficiaries’ co-pays and deductibles obligations. Normally such waivers could be considered inducements to the patient and a possible violation of the federal Anti-Kickback Statute. The HHS Office of Inspector General (OIG) issued a policy statement on March 17, 2020, indicating that it would not pursue administrative sanctions for waivers of co-pays and deductibles. The OIG identified two conditions that must be met to avoid sanctions:
- The telehealth service must be provided under the applicable coverage and payment rules in place at the time of the service.
- The service must be provided during the time period subject to the COVID-19 Declaration.
The OIG specifically notes that the waiver is not required. This means someone will need to ensure that providers are alerted to the rules in place at the time of the service and when the emergency declaration is lifted or expires.
The CMS telemedicine regulations required a real-time, interactive audio and video telecommunication system that is in compliance with the HIPAA Privacy and Security Rules. The requirements to meet the HIPAA regulations for telehealth services were also relaxed by the Office for Civil Rights when it issued a Notification of Enforcement Discretion on March 17, 2020. David Holtzman, Executive Advisor of CynergisTek, provided more information on what this means for healthcare providers in advisory notice, “Some HIPAA Requirements Waived for Hospitals in Response to Coronavirus.”
Medicare allows physicians, nurse practitioners, physician assistants, nurse midwives, clinical nurse specialist, clinical psychologists, clinical social workers, registered dietitians, and certified registered nurse anesthetist to provide telehealth services. There are defined categories of services that can be provided via telehealth and limitations on some services based on the practitioner providing the service. There are a few issues that remain unclear regarding the provision of telehealth services during the coronavirus crisis.
One of those is licensure. As a general premise a practitioner must be licensed in the state where the patient resides or is physically located to provide a telehealth service. This has created issues for practitioners who might have patients who live in or are visiting another state when the telehealth service is provided. This has been a recognized issue for some time and states have been in the process of changing licensure requirements to support telehealth for some time.
The Director’s March 30th announcement indicated CMS is temporarily waiving the Medicare and Medicaid requirement that physicians and non-physician practitioners be licensed in the state where the services is provided. Specific to the Medicare waiver, CMS identified four conditions that must be met for the waiver of licensure to apply. The physician or non-physician practitioner must:
- Be enrolled in the Medicare program;
- Have a valid license in the state tied to their Medicare enrollment;
- Providing services, either in person or via telehealth, in a state where the emergency is occurring in order to contribute to relief efforts;
- Not be affirmatively excluded from practice in the state or any other state that is part of the 1135 emergency area.
While the federal position on licensure has now been made clearer there is still an issue of state laws and regulations. States are moving quick to help combat this pandemic and an updated list of state laws and regulations regarding emergency declarations can be found on the Federation of State Medical Boards’ website.
While the relaxation of licensure requirements will be helpful, healthcare practitioners must remain aware of limitations that may still apply to the scope of services they can provide. For physicians this is less of an issue but for practitioners like advance practice nurses and physician assistants this could be an issue. Even if the licensure requirements are relaxed the individual would only be licensed to practice within the defined scope of practice for their occupation.
For example, a nurse practitioner’s scope of practice as defined by “State A” might allow him/her to provide consultations but the scope of practice in “State B” might not. Even if the nurse practitioner is licensed in State B under the relaxed provisions due to COVID-19 that does not mean he can perform a consultation service in State B. Providers need to be aware of these considerations. If they provide a service in State B that is not within the scope of practice for their profession this could be considered practicing without a license. These scope of practice provisions may or may not have been relaxed during this national emergency. Providers must review this frequently to determine if a particular scope of practice has changed.
Medicaid and Commercial Payer Changes
The announcements and issues discussed thus far have been specific to Medicare. To determine the impact on being able to perform and get paid for telehealth services for Medicaid beneficiaries, providers will need to look to the applicable state Medicaid agencies. The Center for Connected Health Policy (CCHP) has a listing on its website of the actions taken by various states regarding telehealth services in response to this crisis.
As for individuals with commercial insurance, many states have passed parity laws that require commercial payers to pay for telehealth services. The requirements and restrictions regarding how and under what conditions a commercial payer will reimburse for such services is usually defined by the contract between the provider and commercial payer. The CCHP also has a reference page to look up state laws on this issue. A number of commercial payers have publicized their response as it relates to telehealth services on their websites. Providers will need to review this information to understand what can be reimbursed and under want conditions during the course of this national emergency.
While the news report of the relaxation of licensure issues and the expansion of telehealth services is good news, providers are still left in a complex environment when it comes to providing and getting paid for telehealth services in these very trying times. Some providers and healthcare organizations may decide to provide the service for free. That does not resolve all the issues but would minimize the need to worry about meeting the requirements for it to be a billable service. Like with many compliance issues, ask before doing if it is unclear and don’t assume a telehealth service that is provided will be reimbursed.
Please contact us if you have any questions and visit our CTEK COVID-19 Communications page for the latest updates of how the coronavirus crisis is changing healthcare privacy, security, and compliance.