COVID-19 Telehealth Developments for Healthcare Providers

Health Care Regulation / HIPAA
March 19, 2020
 

Federal governmental agencies have made several announcements this week in an effort to remove or reduce regulatory and reimbursement barriers to healthcare providers treating patients through telehealth. Providers will be able to provide services to patients through a range of telehealth communication options, will be able to receive Medicare reimbursement for those services, and will have the option to elect not to bill those Medicare patients for their deductibles.

Relaxing of HIPAA Telehealth Requirements

The Office for Civil Rights (OCR) at the Department of Health and Human Services (HHS) announced that it will not impose penalties for noncompliance with HIPAA against covered healthcare providers in connection with the good faith provision of telehealth during the COVID-19 public emergency declaration. This exercise of discretion applies to telehealth provided for any reason, regardless of whether the telehealth service is related to COVID-19. This means that covered healthcare providers may opt to use a much broader array of audio or video communication technology to provide telehealth services to patients during the COVID-19 emergency.

Which products may I use to communicate with patients at this time?

Apple FaceTime, Facebook Messenger, Google Hangouts, Skype, and any non-public-facing remote communication product without risk that OCR could impose a penalty for HIPAA noncompliance. HHS encourages providers to notify patients that these applications potentially introduce privacy risks, and providers should use all available encryption and privacy modes when using such applications.

Which products may I not use to communicate with patients?

Facebook Live, Twitch, TikTok, and similar public-facing video communication applications.

Medicare Reimbursement for Telehealth Services

The Centers for Medicare & Medicaid Services (CMS) expanded Medicare coverage for telehealth services for the duration of COVID-19 public health emergency. Under this expansion, which is retroactive to March 6, Medicare will pay for office, hospital, and other visits furnished via telehealth (i.e., by interactive audio-visual telecommunication that permits real-time communication) to beneficiaries in their homes by physicians, nurse practitioners, clinical psychologists, licensed clinical social workers, and other providers as permitted by state law. Previously, Medicare would only reimburse telehealth services in certain limited circumstances – for example, when the beneficiary was in a designated rural area and went to a medical facility for the service, virtual check-ins, or limited e-visits.

Medicare will cover three primary types of telehealth visits: evaluation and management visits, mental health counseling, and preventative screenings. Medicare will reimburse these visits at the same rates as in-person visits and the visits may be made to new and established patients.

CMS also notes that to the extent statute requires patients to have a prior established relationship with a particular practitioner, HHS will not conduct audits to ensure that such a relationship exists for claims submitted during the COVID-19 public health emergency.

What is Medicare covering that is new?

Telehealth services with patients from their homes (including evaluation and management visits, mental health counseling, and preventative screenings) at full in-person reimbursement rates. No prior patient relationship is required.

How can I communicate with patients to provide telehealth services at this time?

Through an existing HIPAA-compliant telehealth system or one of the above telehealth options.

Provider Waiver of Medicare Co-Pays

The Office of Inspector General (the OIG) has issued guidance allowing providers to waive Medicare co-insurance amounts and deductibles for telehealth services during the COVID-19 public health emergency. As pointed out by the OIG, routine cost-sharing waivers owed by Medicare beneficiaries potentially implicate the Federal Anti-Kickback Statute and the civil monetary penalty laws. However, because of the challenges posed by the COVID-19 outbreak, the OIG will not impose administrative sanctions in this instance.

Can I see Medicare patients remotely without billing the patient, and only bill Medicare?

Yes, during this public health emergency.

Telehealth Opioid Prescribing

The Department of Justice Drug Enforcement Agency (DEA) announced that providers possessing a DEA registration may prescribe controlled substances via telehealth without a prior in-person evaluation. During the COVID-19 public health emergency, providers acting in the usual course of their practice may issue prescriptions for a legitimate medical purpose via a telehealth communication using real-time, audio-visual, two-way interactive communication (subject to any state laws).

The federal Controlled Substances Act generally requires a prescription for a controlled substance that is issued by means of telehealth to be preceded by an in-person visitation. However, that statute includes an exception for public health emergencies, including this designation of public emergency. Per the DEA, a provider may issue a prescription electronically for schedule II-V drugs or by calling in an emergency schedule II drug prescription to the pharmacy or by calling in a schedule III-V prescription to the pharmacy.

May I prescribe controlled substances via a phone call only?

No.

May I prescribe controlled substances through one of the telehealth methods outlined above even if I have not seen the patient in person?

Yes, during this public health emergency and provided state law does not say otherwise.


Please contact your Calfee attorney, or any of the Calfee professionals listed below with any questions you may have.

 
 
 
 
 
 
 
 
 

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