Fellow Fox Rothschild LLP attorneys Margaret J. Davino, Salvatore J. Russo and Nawa A. Lodin generously contributed this post.
On March 17, 2020, the Centers for Medicare & Medicaid Services (CMS) broadened access to Medicare telehealth services to allow Medicare patients to receive more services from their doctors without travel to a health care facility. This benefit is available on a temporary and emergency basis under the 1135 waiver authority and Coronavirus Preparedness and Response Supplemental Appropriations Act, to provide telemedicine services during the national emergency declared regarding COVID-19. [See Medicare Telemedicine Healthcare Provider Fact Sheet].
Before this new waiver, Medicare paid only for telehealth when the patient was in a designated rural area and left the home and went to a clinic, hospital or certain other types of medical facilities for the service. Now, Medicare can pay for office, hospital and other visits furnished via telehealth across the country including in patient’s places of residence, retroactive to March 6, 2020. A range of providers, such as doctors, nurse practitioners, clinical psychologists and licensed clinical social workers, will be able to offer telehealth to their patients. Additionally, the HHS Office of Inspector General (OIG) is providing flexibility for health care providers to reduce or waive cost-sharing for telehealth visits paid by federal health care programs.
Also, effective immediately, the HHS Office for Civil Rights (OCR) will exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency. [See Emergency Situations: Preparedness, Planning, and Response, from HHS.]
Medicare Telehealth Visits
Starting March 6, 2020 and for the duration of the COVID-19 public health emergency, Medicare will pay for professional services to beneficiaries in all areas of the country in all settings (instead of the limited originating sites listed before March 6). For this Medicare telehealth visit, the provider must use an interactive audio and video telecommunications system that permits real-time communication between the distant site and the patient at home. Although Medicare normally requires the patient to have a prior established relationship with a particular practitioner, HHS will not conduct audits to ensure that such a prior relationship existed for claims submitted during this public health emergency. These visits are considered the same as in-person visits and are paid at the same rate as regular in-person visits.
The Medicare coinsurance and deductible would generally apply to these services. However, as noted, the OIG is providing flexibility for health care providers to reduce or waive cost-sharing for telehealth visits paid by federal health care programs.
Other Medicare Telehealth Visits
The CMS Fact Sheet reminds providers that there are two previously-existing types of telehealth services: (1) virtual check-ins; and (2) e-visits.
Virtual check-ins: In 2019, Medicare started reimbursing in all areas (not just rural areas) for established Medicare patients in their homes to have a brief communication service (virtual check-in) with practitioners via a number of communication technology modalities, including synchronous discussion over a telephone or through video or image (unlike Medicare telehealth visits, which require audio and visual capabilities for real-time communication). The practitioner may respond to the patient’s concern by telephone, audio/video, secure text messaging, email or use of a patient portal. The communication may not be related to a medical visit within the previous seven (7) days and cannot lead to a medical visit within the next 24 hours (or soonest appointment available). The patient must verbally consent to receive virtual check-in services. The Medicare coinsurance and deductible apply to these services. In addition, separate from these virtual check-in services, captured video or images can be sent to a physician (HCPCS code G2010).
E-visits: In all types of locations including the patient’s home, and in all areas (not just rural), established Medicare patients may have non-face-to-face patient-initiated communications with their doctors without going to the doctor’s office by using online patient portals. The patient must generate the initial inquiry and communications can occur over a seven-day period. The services may be billed using CPT codes 99421-99423 and HCPCS codes G2061-G2063, as applicable. The patient must verbally consent to receive virtual check-in services. The Medicare coinsurance and deductible would apply to these services.
This CMS Fact Sheet does not change state laws (e.g., state licensing laws that require that a physician be licensed in the state in which the patient resides) or state Medicaid requirements. The New York State Department of Financial Services just published this notice yesterday relaxing reimbursement provisions for telehealth services: https://www.dfs.ny.gov/system/files/documents/2020/03/re62_58_amend_text.pdf. Note also the NJ Telemedicine Act, N.J.S.A. 45:1-62 et seq., which (among other things) requires a physician to provide the patient with certain information, including his or her professional credentials, before engaging in telemedicine and requires a physician to establish a provider-patient relationship before prescribing medication to the patient.
If you have any questions on engaging in telemedicine or telehealth in your practice, please do not hesitate to contact us or knowledgeable legal counsel.