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CMS Expanding Telehealth to Combat COVID-19

Beginning on March 6, 2020, the Centers for Medicare and Medicaid Services (“CMS”) has temporarily expanded telehealth services for Medicare beneficiaries and cut back on HIPAA enforcement to help combat the COVID-19. This expansion will last until the end of the public health emergency as declared by the Secretary of HHS. Telehealth, the remote delivery of healthcare services, often by video conference between patient and provider, is a growing frontier in the age of digital healthcare. However, Medicare was slow to adopt the new technology.

Until recently, Medicare only covered telehealth services provided to beneficiaries in designated rural areas and only if they received the services at a hospital, clinic, or other medical facility. Virtual check-ins and e-visits were reimbursed at a much lower rate. Virtual check-ins encompass brief communications between physicians and patients, such as text messages or emails, where a patient can send images and discuss symptoms and treatment options with their physician. E-visits are conducted through a patient portal and are not face-to-face. This temporary expansion will now reimburse physicians who perform virtual check-ins and e-visits at the rate of an in-person visit.

The expansion was made in pursuant to an 1135 waiver. The Coronavirus Preparedness and Response Supplemental Appropriations Act, as signed into law on March 6, 2020 authorized the Department of Health and Human Services (“HHS”) to waive certain traditional Medicare telehealth requirements during this national emergency. Spurred by the calls for self-quarantine and social distancing, these waivers have led to an expansion of Medicare coverage for telehealth services.

The intended goal of Medicare now covering all forms of telehealth is that it will keep at-risk patients in their homes and out of the physicians’ office, while still providing them with the care that they need. These telehealth services extend to more than just physicians for regular office visits, but also to nurse practitioners, clinical psychologists, and licensed clinical social workers who offer telehealth to Medicare beneficiaries.

Amidst the COVID-19 outbreak, the Office for Civil Rights (“OCR”) at the Department of Health and Human Services will exercise enforcement discretion and temporarily waive penalties for HIPAA violations. These waivers of penalties will only be granted so long as the physician is serving their patient in good faith. For example, technologies such as FaceTime, Skype, or phone calls on a personal cell phone are interfaces that usually would be non-HIPAA compliant, but they will now be temporarily accepted as ways to utilize telehealth. However, CMS does ask that physicians notify their patients that HIPAA enforcement has been relaxed and there is an increased risk of a privacy breach before they engage in telehealth through a non-HIPAA compliant interface.

The federal government is urging state Medicaid programs to also expand in-person reimbursement to all telehealth services. Both Medicare and Medicaid are sources of coverage for vulnerable populations—where Medicare is often a source of coverage for individuals 65 and above, Medicaid is often source of coverage for low-income and disabled populations. States currently have options available to expand telehealth coverage in the same manner that Medicare has. Medicaid provides states with a guarantee of federal matching payments, so, federal resources to states can increase if the demands for the program in response to COVID-19 grow.

Depending on the length of the public health emergency, the level of use of expanded telehealth, the quality of care provided, and the good faith used by providers, it is possible that some of these measures may be implemented on a more permanent basis.

For over 30 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding the new temporary telehealth expansion as well as the current HIPAA requirements. Wachler & Associates will continue to stay up to date with telehealth progressions, as well as other current news.  If you or your healthcare entity has any questions pertaining to healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or wapc@wachler.com.

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