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COVID-19 Federal Response Updates

| March 23, 2020

COVID-19 Federal Response Updates

Information regarding COVID-19 is overwhelming. The College’s Advocacy Council will sort through it and summarize the important issues. We will update as new information becomes available, so check back often. The Advocacy Council – we have you covered.

On March 16, we sent urgent letters to Health and Human Services (HHS) Secretary Alex Azar and all state medical associations, asking them to advocate that telephone consults be included in telehealth benefit coverage for Medicare, Medicaid and commercial carriers.

In guidance released by the U.S. Department of Health and  Human Services (HHS) on March 17, 2020, the Administration greatly expanded Medicare coverage of telehealth services to cope with the national public health emergency posed by COVID-19 describing broadened access to telehealth services under Medicare. This guidance and an accompanying set of FAQs implements legislation enacted on March 6, 2020 which, among other things, gave the Secretary of HHS discretion to waive statutory rural and site of service coverage restrictions on services provided via telehealth.

Summary of key provisions within the waiver:

  • The waiver, authorized under section 1135(b)(8) of the Social Security Act, is retroactive to March 6, 2020;
  • Provides for Medicare coverage for telehealth services regardless of where the beneficiary is located;
  • Allows services to be provided to beneficiaries in any healthcare facility, as well as in their home;
  • Is not limited to telehealth services related to COVID-19 and applies to any medically necessary covered service.
  • Includes a statement that, while the waiver is limited to established patients (those seen within the last 3 years), HHS will not conduct audits to ensure that a prior relationship existed.
  • Provides flexibility, under certain conditions, for health care providers to reduce or waive cost-sharing obligations for telehealth visits paid by federal health care programs without violating beneficiary inducement laws.
  • Allows for health care providers to use certain audio-visual chat applications to provide telehealth services through HIPAA waivers.

Discussion

The Administration broadly interpreted the Secretary’s waiver authority to relax telehealth

rules so that patients could avoid unnecessary trips to health care facilities while ensuring patients continue to receive the care they need. Notably, the waiver extends to all healthcare needs – not only those related to COVID-19.

Important takeaways for health care providers include:

  • Services and payments: The waiver applies to all services that are currently included on the CMS telehealth list, described by HCPCS codes and paid under the physician fee schedule; payment is the same as if the service were provided in person. However, reimbursement is at the lower “facility” rate rather than the “non-facility” rate that applies to most services provided in a physician’s office.
  • Health care professionals: The waiver does not expand the types of qualified health professionals entitled to provide or bill for services furnished via telehealth.
  • Other non-face-to-face services: The waiver does not impact services such as virtual  check-ins and e-visits that do not involve face-to-face communications.
  • Medicaid: The waiver does not apply to Medicaid; however, state Medicaid agencies already have authority to cover a broad range of telehealth services without geographic or site restrictions.
  • HIPAA: The HHS Office of Civil Rights (OCR) will not impose certain penalties on HIPAA covered health care providers using telehealth in ways that do not comply with HIPAA rules. Specifically, HIPAA technology requirements are relaxed for all covered health care providers to allow for nonpublic video chat applications such as Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype for all telehealth services, but not for applications such as Facebook Live, Twitch, and TikTok. Although not required under the waiver, OCR encourages health care providers to seek additional privacy protections and enter into HIPAA-compliant business associate agreements with vendors.
  • Cost-sharing and copayments: The HHS Office of Inspector General (OIG) released a policy statement that the COVID-19 pandemic has created unique situations in which cost-sharing waivers or reductions may be necessary. The policy statement includes notice that the OIG will not impose sanctions on physicians for waiving amounts owed as long as the following conditions are met:
    • The cost-sharing obligation must be related to telehealth services furnished consistent with the then-applicable coverage and payments rules; and
    • The telehealth services are furnished during the time period subject to the COVID-19 public health emergency declaration.

The enforcement waiver does not require a physician to waive or reduce cost sharing obligations. The waiver will remain in effect until the COVID-19 public health emergency declared on January 31, 2020 ends, but it reserves the right to withdraw or modify the policy statement at any time.

Physicians and other practitioners are still expected to comply with all applicable legal authority regarding billing and claim submission, as well as all other Federal, state, and local laws and regulations in effect.

 

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