Articles Posted in Telemedicine

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As telemedicine becomes an increasingly popular method for connecting patients with healthcare providers, many providers are becoming interested in expanding the reach of their telehealth practices across state lines. Although technological advancements have helped providers communicate with patients remotely, state and federal regulations add additional considerations for practicing across multiple states.

Generally, healthcare providers will provide telehealth services to patients located within their own state. Most states allow for telehealth services and will allow state-licensed providers to provide telehealth services within the state in which they are licensed. State licensure requirements become more complex when an out-of-state provider wishes to provide telehealth services to a patient located in another state.

Telehealth services are generally considered to be performed at the patient’s physical location, which usually means that the provider must be licensed in the patient’s home state. Although the COVID-19 pandemic caused several states to temporarily waive some licensing requirements for cross-state telehealth services, many of those waivers has since expired.

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On March 15, 2022, President Biden signed into law the Consolidated Appropriations Act, otherwise known as the “Omnibus Bill.” Included in the many provisions introduced by the Omnibus Bill is an extension of Medicare coverage of professional consultations, office visits, and office psychiatry services conducted via telemedicine for 151 days following the termination of the COVID-19 public health emergency (PHE).

As part of the government’s response to the COVID-19 pandemic in March 2020, administrative and legislative changes waived the traditional location and technology requirements necessary to qualify for Medicare coverage for the duration of the PHE. In addition to extending these waivers, the Omnibus Bill expands the types of practitioners eligible to provide telehealth services to patients. Prior to the PHE, Medicare covered telehealth services only if offered by physicians, physician assistants, nurse practitioners, clinical nurse specialists, nurse-midwives, clinical psychologists, clinical social workers, registered dieticians, or certified registered nurse anesthetics. The Omnibus Bill adds to the list of qualifying practitioners occupational therapists, physical therapists, speech-language pathologists, and audiologists. Other changes under the Bill include delaying in-person requirements for the provision of mental health services and extending coverage of telehealth services rendered by federally qualified health centers to provide telehealth services for the same 151-day post-PHE time period.

While these changes may be welcomed by many healthcare providers as supplying necessary resources for both telehealth patients and providers, it remains to be seen whether coverage flexibilities established during the PHE will become permanent moving forward. The Omnibus Bill requires the Medicare Payment Advisory Commission to provide Congress with a report by June 15, 2023 on the expansion of telehealth services as a result of the PHE. The Department of Health and Human Services (HHS) Office of Inspector General (OIG) is similarly required to provide Congress with a report by June 15, 2023 on program integrity risks associated with Medicare telehealth services. Additionally, HHS must post quarterly data, beginning on July 1, 2022, on Medicare claims for telemedicine services. Healthcare providers should be cognizant of these developments and take steps to ensure compliance is maintained as these and other legislative and regulatory changes unfold.

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In response to the mounting nationwide shortage of healthcare workers, one state will allow certain healthcare workers to practice solely on out-of-state licenses. This move may signal similar actions by other states and could have wide-ranging implications for the delivery of healthcare services.

During the height of the COVID-19 pandemic, many states waived requirements that healthcare providers, including in some cases physicians and nurses, be licensed in a particular state to provide services in that state. Often, states allowed a provider licensed and in good standing in any state to providers services to patients within the state based on the provider’s out-of-state licenses. This regulatory flexibility allowed more efficient delivery of care during the pandemic. The greatest efficiency was likely added to the delivery of telemedicine. Quite simply, there is often no technical or practice-related reason why a provider seeing patients via telemedicine must be licensed in the same state as their patient. By waiving regulatory obstacles, providers could practice across state lines by telemedicine and help deliver care to where it was needed most.

However, most of these regulatory flexibilities were only temporary and have since ended, meaning that physicians and providers again must often be licensed in a state to provide services to patients within that state. However, while these flexibilities have largely ended, the shortage of physicians and other healthcare workers, which pre-dates the pandemic, have only grown more acute during the pandemic. In response to these shortages, Nebraska will allow some healthcare workers, including PT, OT, and SLP therapists, to practice in Nebraska without a Nebraska license if the provider is licensed in another state. This move is currently only temporary and does not extend to physicians or nurses.

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During the COVID-19 public health emergency, the Department of Health and Human Services (HHS) and the Centers for Medicare & Medicaid Services (CMS) waived many of the restrictions that limited Medicare coverage for healthcare services for telemedicine and allowed for much greater use of these services. Among these was the introduction of Medicare coverage for several audio-only services, whereas Medicare coverage had previously only extended to telemedicine services provided by interactive two-way audio/video communication. However, these actions were only temporary and will end when the declaration of a public health emergency ends.

Due to the tremendous value that audio-only telemedicine has provided to the healthcare system, providers, and Medicare beneficiaries, there have been calls for the temporary expansion of telemedicine to be made permanent. While CMS has asserted that large-scale changes to the Medicare program must come from Congress, CMS recently released the proposed 2022 Physician Fee Schedule which, among many other proposals, would retain Medicare coverage for some audio-only services.

Specifically, CMS would permit the use of audio-only communications technology for mental health telehealth services under certain conditions when the services are provided to beneficiaries located in their home. Under the CMS proposal, coverage would be limited to the diagnosis, evaluation, or treatment of mental health disorders in established patients where the originating site is the patient’s home. CMS would retain the requirement that an in-person item or service must be furnished within six months of such a mental health telehealth service. Further, CMS would require that the provider has the technical capability at the time of the service to use an interactive telecommunications system that includes video, but conducts the visit via audio-only because the beneficiary is unable to use, does not wish to use, or does not have access to two-way, audio/video technology. CMS states its goal is to allow audio-only services only where no service would otherwise occur.

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Many of the Medicare requirements surrounding telemedicine have been greatly relaxed or waived entirely during the COVID-19 public health emergency. Providers and patients wondered if these changes would end or if some might become permanent. In May 2021, Congress introduced H.R.3447, a bill to amend the Social Security Act to expand accessibility to certain telehealth services under the Medicare program, which was an encouraging sign that at least some of the telemedicine waivers may become permanent. Now, the Centers for Medicaid and Medicare Services (CMS) seeks to preserve telehealth access with the proposed 2022 Medicare Physician Fee Schedule (MPFS). If finalized, the rule would codify some of the recent flexibilities CMS has granted regarding telehealth use for the diagnosis, evaluation, and treatment of mental health disorders.

CMS plans to allow Medicare providers to continue offering certain telehealth services until the end of 2023 while the agency decides whether to add those services to the telehealth list permanently. CMS will permit all Medicare patients to access telehealth services from their homes, as called for in the Consolidated Appropriations Act Congress passed in December 2020. Additionally, the agency seeks to enable Medicare to pay for mental health visits via telehealth services provided through community health centers. CMS plans to allow providers to deliver audio-only behavioral and mental health services, including opioid addiction treatment. The proposed rule would also pay physicians for mental health visits, via interactive telecommunications technology, furnished to rural and vulnerable populations in rural health clinics and federal qualified health centers.

The rule also proposes notable changes to the Quality Payment Program (QPP), including the Merit-based Incentive Payment System (MIPS). Specifically, the agency seeks to make it more difficult for clinicians to earn bonuses under its QPP by raising the eligibility threshold. Furthermore, CMS unveiled its first seven MIPS Value Pathways, including: rheumatology; stroke care and prevention; heart disease; chronic disease management; emergency medicine; anesthesia; and lower-extremity joint repairs. CMS, as part of these initiatives, would evaluate clinicians using measures that are meaningful to their practices and their specialties or are relevant to public health priorities. The proposed fee schedule is open for public comment until September 13, 2021.

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During the COVID-19 pandemic, many of the Medicare requirements surrounding telemedicine have been greatly relaxed or waived entirely. These temporary waivers, including allowing Medicare coverage of certain audio-only services, have been welcome changes for many providers and patients. With the end of the pandemic in sight, many are wondering if these changes will end or if some of the temporary waivers will become permanent.

The COVID-19 telemedicine waivers were authorized under Section 1135 of the Social Security Act, which allows the Secretary of Health and Human Services to temporarily waive or modify certain Medicare requirements for the duration of a declared public health emergency. The telemedicine waivers include: allowing telehealth services to be provided nationwide, rather than only in certain locations; allowing beneficiaries to receive, and providers to furnish, telehealth services from any setting, including beneficiaries’ and providers’ homes; allowing additional types of providers, such as physical and occupational therapists, to furnish telehealth services; temporarily adding over 146 new telehealth services; and allowing certain services to be furnished using audio-only technology such as telephones, instead of interactive systems involving video technology. As the authority to issue waivers is based on the declaration of a public health emergency, these waivers will end when the declared public health emergency ends.

Likely in response to calls from both providers and patients to make the telemedicine waivers permanent, Congress recently introduced H.R.3447, a bill to amend the Social Security Act to expand accessibility to certain telehealth services under the Medicare program. While the bill in the early stages of the legislative process and will likely be subject to much debate and many changes, it is an encouraging sign that at least some of the telemedicine waivers may become permanent.

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Two nurse practitioners, with Medicare patients based in Montana, recently pled guilty to conspiracy to commit healthcare fraud. The two NPs were among 345 other healthcare professionals charged in a nationwide healthcare fraud and opioid action undertaken by the United States Department of Justice (DOJ) in September 2020.  This alleged fraudulent activity has resulted in charges for defendants in various healthcare professions, including, genetic testing laboratories, pharmacies, and durable medical equipment (DME) companies.

Since September 2020, DOJ has been investigating a largescale telefraud scheme which alleges that a marketing network brought in hundreds of thousands of unaware participants through the use of telemarketing calls, direct mail, television advertisements, and internet advertisements. The telemedicine executives charged in the action allegedly paid healthcare providers to request DME, medications, and laboratory and diagnostic testing that were medically unnecessary and either without any patient interaction or with only a short telephone conversation with patients the providers had never met or seen. Often, the test results, medications, or DME ordered were not provided to the beneficiaries, were not medically necessary or of use to the beneficiaries, or were the result of false diagnoses. The two individual NPs pled guilty to conspiracy to commit healthcare fraud through their involvement in a plan related to DME, specifically braces used in orthotics. The two NPs received illegal payments from telemedicine companies in exchange for signing orders for braces received by unlicensed telemarketers with no formal training. Medicare patients received the braces without having been seen by a healthcare provider. The orthotics ordered by the nurses for Medicare patients were not medically necessary, and Medicare will only pay for services that are medically necessary and reasonable and supplies used to diagnose and treat a patient’s condition.

Since 2016, the Department of Health and Human Services Office of Inspector General (HHS OIG) has recorded a significant increase in telefraud, healthcare fraud related to telemedicine. Prior to the COVID-19 Public Health Emergency (PHE), Medicare only reimbursed providers for telehealth services for routine appointments in specific circumstances. In addition, the telehealth visit was required to be a real-time, two-way interactive communication using video technology, with a patient and provider who had a previous established relationship. However, as a result of the COVID-19 pandemic, the Center for Medicare and Medicaid Services (CMS) expanded Medicare’s telehealth benefits and allows for the billing of evaluation and management (E/M) audio-only telemedicine visits for the duration of the COVID-19 PHE.

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