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Medicare Telehealth Changes Spurred by COVID-19 Medicare Telehealth Changes Spurred by COVID-19

Medicare Telehealth Changes Spurred by COVID-19

On March 17, 2020, the Centers for Medicare and Medicaid Services (“CMS”), on a temporary and emergency basis, expanded access to Medicare telehealth services so all Medicare patients can receive services without traveling to a health care facility. Effective on March 6, 2020 and lasting for the duration of the COVID-19 Public Health Emergency, Medicare will pay for in-office, hospital and other visits in all locations, not just rural areas, and in any health care facility and when the patient is in the patient’s home. Prior to this waiver, Medicare would only pay for telehealth when the patient was in a designated rural area and when the patient was in a clinic, hospital or certain other medical facility.

There are three main types of virtual services for which Medicare will pay under this waiver: Medicare telehealth services, virtual check-ins and e-visits.
 
Medicare telehealth services. Medicare patients may use telecommunications for in-office, hospital visits and other services that generally occur in-person. The health care provider must use an interactive audio and video telecommunications system that permits real-time communication between the provider and the patient. Subject to any applicable state law requirements, practitioners who can provide these Medicare telehealth services include physicians, nurse practitioners, physician assistants, nurse midwives, certified registered nurse anesthetists, clinical psychologists, clinical social workers, registered dieticians and nutrition professionals. To the extent the 1135 waiver requires an established relationship, HHS has stated it will not conduct audits to ensure a prior relationship existed for claims during the Public Health Emergency. Additionally, while the Medicare deductible and coinsurance amounts would generally apply to these services, the Department of Health and Human Services (“HHS”) Office of Inspector General (“OIG”) is exercising its enforcement discretion and providing flexibility for health care providers to reduce or waive beneficiary cost-sharing obligations (coinsurance and deductible amounts) for telehealth visits. Medicare will treat these visits the same as in-person visits, and they will be paid at the same rate as in-person visits.
 
Virtual Check-ins. Established Medicare patients may have a brief communication with a health care provider via a number of communication technology modalities including over the telephone or exchange of information over video or image. These virtual check-ins must generally be initiated by the patient. However, CMS recognized that practitioners may need to educate beneficiaries on the availability of the service prior to patient initiation. The communication with a patient cannot be related to a medical visit within the previous seven days and does not 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 deductible amounts would apply to virtual check-in services. Virtual check-ins can be provided with a broader range of communication methods, unlike Medicare telehealth visits which require audio and visual capabilities for real-time communication.
 
E-Visits. Established Medicare patients may have non face-to-face patient-initiated communications without going to their doctor’s office by using an online patient portal. The patient must generate the initial inquiry and communications can occur over a seven-day period. The patient must generally consent to receive virtual check-in services. The Medicare coinsurance and deductible obligations would apply to e-visits.
 
Additionally, CMS noted that, effective immediately, the Office of Civil Rights (“OCR”) will exercise its enforcement discretion and waive penalties for HIPAA violations against health care providers that service patients in good faith through everyday communication technologies, such as FaceTime and Skype, during the Public Health Emergency. For more information about HIPAA guidance issued by the OCR, please see Health Care in the Time of COVID-19: OCR Publishes Telehealth FAQs for HIPAA-Covered Health Care Providers and Department of Health and Human Services: COVID-19's Impact on HIPAA Requirements.

For more information about the Medicare telehealth changes and a summary of billing codes to be used for such services, see the CMS fact sheet. If you have any questions about the CMS telehealth changes, please contact Taryn Stone at taryn.stone@icemiller.com or Margaret Emmert at margaret.emmert@icemiller.com

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

 
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