By: Alaina N. Crislip and Lindsay D. Petrosky
Healthcare providers fight the COVID-19 public health crisis on the front lines and at the same time must be able to adapt and use telehealth technology to not only protect their patients, but to also protect their employees, staff, themselves and their families.
Congress recognizing this crucial predicament, passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which the President signed into law on March 27, 2020. A portion of the CARES Act is devoted to promoting increased use of telehealth services by waiving certain requirements and expanding funding to improve access to telehealth services.
In recent weeks, the Centers for Medicare and Medicaid Services (“CMS”) has taken steps to promote the use of telehealth through relaxed regulatory restrictions at the federal and state levels. Immediately following issuance of the CARES Act, a portion of which is devoted to promoting increased use of telehealth services through waiver of certain requirements and expansion of funding to improve access to telehealth services, CMS issued the Interim Final Rule (“IFR”) on telehealth.1 CMS’ goal in issuing the IFR is to promote needed flexibility to provide services to Medicare beneficiaries during a pandemic. The IFR ultimately provides changes to the pre-existing Medicare payment rule limitations that could be read to inhibit the use of viable technology platforms and mediums to fight the spread of the COVID-19 public health threat.
The IFR in its PDF version is a mere 229 pages. While not all of the changes are covered in this briefing, a high-level overview of certain changes are provided for consideration by our clients. Note that all of the changes applicable in the IFR are effective March 1, 2020 and continue until the end of the public health emergency (“PHE”).
Site of Service Differential for Medicare Telehealth Services
- Physicians can now provide telehealth from their home. Physicians do not have to add their home to their Medicare enrollment file. Physicians will be reimbursed at a non-facility, non-clinic rate.
Adds Services to the List of Medicare Telehealth Services
- Adds 80 additional CPT codes to the list that CMS will reimburse during the PHE and lifts frequency limits associated with such codes. Some of the items to be covered include: ED visits, initial and subsequent observation, observation and discharge day management, initial hospital and hospital discharge day management, initial nursing facility visits and nursing facility discharge day management, critical care services, rest home or custodial care services, home visits, initial and continuing intensive care services, care planning for patients with cognitive impairment, group psychotherapy, end stage renal disease, psychological and neuropsychological testing, therapy services.
- All services will meet CMS Category 2 basis for the COVID-19 PHE time period.
Removes Frequency Limitations on Subsequent Care Services
- CMS previously limited subsequent hospital services to once every 3 days. Through the IFR, CMS is removing any such frequency limitation for the PHE time-period for the following types of services: inpatient visits and subsequent nursing facility visits and critical care consultations. CMS recognizes that telehealth for these services may be the best available care during the PHE.
- For other services such as required “hands-on” visits for ESRD, CMS will be exercising its enforcement discretion on an interim basis and will not conduct reviews to consider whether such visits were conducted face-to-face without the use of telehealth.
Telehealth Modalities and Cost-Sharing
- For the PHE, CMS clarifies the following exception to the definition of “interactive telecommunications system” to mean any multimedia communications equipment that includes, at a minimum, audio and video equipment, permitting two-way, real-time interactive communication between the patient and distant site physician or practitioner. In addition CMS, recognizes OCR’s enforcement discretion and waiving of HIPAA penalties for the good faith use of everyday technologies, such as FaceTime and Skype.
- CMS affirms the OIG’s policy statement notifying physicians and practitioners they will not be subject to administrative sanctions for reducing or waiving any cost-sharing obligations Federal program beneficiaries may owe for telehealth. Further, CMS explains that this pertains to broad category of non-face-to-face services furnished through different modalities, including telehealth visit, virtual check-in services, e-visits, monthly remote care management, and monthly remote patient monitoring.
Direct Supervision by Interactive Telecommunications Technology
- CMS revised the definition of “direct supervision” to permit that for the duration of the PHE, direct supervision may be provided using real-time interactive audio and video technology when the use of such technology is indicated to reduce exposure risks for the beneficiary or health care provider. CMS recognizes that this may include arrangements entered into by a physician to leverage additional staffing and technology for services that would ordinarily be incident-to a physicians’ services. For example, a physician may enter into arrangements with a home health agency, a qualified infusion therapy supplier, or entities that furnish ambulance services in order to utilize their nurses or other clinical staff as auxiliary personnel under leased employment.
- Definition of “direct supervision” is also amended for hospital services for the duration of the PHE so that it continues to conform with the applicable definitions for services paid under the PFS.
- Similar revisions are being made to cardiac rehabilitation, pulmonary rehabilitation, and intensive cardiac rehabilitation services to specify that direct supervision may include services via a virtual presence through audio/video real-time communications when the sue is indicated to reduce exposure risks for the beneficiary and the health care provider.
Clarification of Homebound Status under Medicare Home Health Benefit
- CMS clarifies that a patient is considered to meet the definition “confined to the home” (meaning homebound) if:
- A physician has determined that it is medically contraindicated for a beneficiary to lease the home because he or she has a confirmed or suspected case of COVID-19;
- Where a physician has determined that it is medically contraindicated for a beneficiary to leave the home because the patient has a condition that may make the patient more susceptible to contracting COVID-19.
- In addition to being considered “confined to home”, a patient must also meet other Medicare home eligibility requirements to receive home health services. Meaning the beneficiary:
- Must be under the care of a physician;
- Be in need of skilled nursing care on an intermittent basis or physical therapy or speech pathology; or
- Have a continuing need for occupational therapy.
Modification to Inpatient Rehabilitation Facility Face-to face Requirements
- The IRF temporarily allows face-to-face visit requirements to be conducted via telehealth to safeguard the health and safety of the patients and the treating providers.
Rural Health Clinics (“RHCs”) and Federally Qualified Health Centers (“FQHCs”)
- CMS opens up additional reimbursement codes for RHCs and FQHCs at a national, non-facility PFS payment rate.
- Use of the additional codes requires that the Medicare patient has been seen at the RHC or FQHC within the last 12 months.
Jackson Kelly will continue to provide briefings on additional telehealth developments as they are issued. For further details on the specifics of this article contact your Jackson Kelly relationship partner or a member of the Jackson Kelly Health Law Industry Group.
1 https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-06990.pdf (accessed on April 7, 2020).