By Kate Hickner
During the past few weeks, health care attorneys have received an unprecedented number of questions from health care providers regarding telemedicine in response to the coronavirus pandemic.
Until recently, health care attorneys were not able to provide much comforting assurance to their clients. Medicare previously only reimbursed providers for certain telemedicine services in rural areas at certain locations or for certain brief “virtual check-ins.” But now, the telemedicine landscape has become dramatically different.
Medicare and Related Federal Guidance
On March 17, 2020, President Trump announced that “Medicare patients can now visit any doctor by phone or video conference at no additional cost, including with commonly used services like FaceTime and Skype — a historic breakthrough. This has not been done before…”[1]
This announcement follows the prior announcement that the federal government would authorize $500 million in new spending for the expansion of telemedicine.[2]
Medicare covers a population that is 65 years or older and others who qualify because of a disability—a population that is especially susceptible to the coronavirus. These recent telehealth developments are a meaningful step forward in protecting individuals across the country from the coronavirus and ensuring increased access to healthcare.
Two of the most helpful summaries of the new flexibility to provide telehealth services to Medicare beneficiaries is set forth in a Medicare Telemedicine Health Care Provider Fact Sheet, published March 17, 2020 by the Centers for Medicare and Medicaid Services (CMS) and the related Medicare Telehealth Frequently Asked Questions (FAQs) issued the same day.[3] CMS has also issued a specific telehealth resource focused on long-term care nursing homes.[4]
The Fact Sheet clarifies that there are three types of virtual services physicians and other professionals can provide to Medicare beneficiaries: Medicare telehealth visits, virtual check-ins and e-visits. It goes on to summarize the requirements for billing each type of service and a chart comparing them. Medicare will pay the same amount for telehealth services as it would if the services were furnished in person. CMS has clarified that physicians and certain non-physician practitioners such as nurse practitioners, physician assistants and certified nurse midwives may provide telehealth services. Other practitioners, such as certified nurse anesthetists, licensed clinical social workers, clinical psychologists and registered dietitians or nutrition professionals may also furnish services under certain circumstances. Providers that engage in telemedicine are encouraged to take the time to read the guidance referenced in this paragraph to fully understand the billing and other parameters, which go beyond the scope of this article.
The U.S. Department of Health and Human Services (DHHS) Office of Inspector General (OIG) also issued a Policy Statement to provide increased flexibility for healthcare providers to reduce or waive beneficiary cost-sharing for telehealth visits paid for by federal health care programs and related guidance.[5] The guidance states that “[o]ordinarily, if physicians or practitioners routinely reduce or waive costs owed by Federal health care program beneficiaries, including cost sharing amounts such as coinsurance and deductibles, they would potentially implicate the Federal anti-kickback statute, the civil monetary penalty and exclusion laws related to kickbacks, and the civil monetary penalty law prohibition on inducements to beneficiaries…. OIG will not enforce these statutes if providers choose to reduce or waive cost-sharing for telehealth visits during the COVID-19 public health emergency.”
Further, the DHHS Office of Civil Rights (OCR) announced that it would refrain from enforcing certain aspects of HIPAA to encourage the use of telemedicine for seniors. The OCR Notice states: “OCR will exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.”[6] The Notice goes on to identify those applications that may be used without risk that OCR may seek a penalty for noncompliance (e.g., Apple FaceTime, Facebook Messenger video chat, Google Hangouts video or Skype) and those that should not be used in the provision of telehealth by covered health care providers (e.g., Facebook Live, TikTok or similar applications that are public facing). During February 2020, OCR also issued a helpful bulletin regarding HIPAA requirements for sharing patient information during the pandemic.[7]
State Law Considerations
Providers should remember that the CMS guidance announced on March 17, 2020 applies only with respect to services payable by Medicare. The federal government has also encouraged states to expand the use of telehealth in their Medicaid programs for low-income individuals. It is hoped that commercial third-party payers will follow suit. Because the new CMS guidance only applies with respect to Medicare, providers must review the requirements of their state Medicaid programs and commercial third-party payers when applicable. Providers who have opted-out of Medicare and operate on a cash basis have the greatest flexibly with respect to telemedicine.
If providers engage in telemedicine, they must ensure that their program is consistent with applicable state laws, including licensure and prescribing requirements. In particular, note that when providing telemedicine services, providers generally must comply not only with the state law in which the provider is located but also the state law where the patient is located. Accordingly, providing telemedicine services to a patient in another state may require telemedicine providers to comply with a regulatory regime with which they are not familiar. States are currently in the process of substantially increasing flexibility in this area to respond to the pandemic and providers should stay abreast of current developments regarding state licensure requirements.
The State of Ohio has issued long-standing guidance with respect to telemedicine.[8] However, on March 19, the Ohio Department of Health issued Executive Order 2020-01D, which suspends enforcement of certain State Medical Board of Ohio restrictions on telemedicine.[9] The Ohio Departments of Mental Health and Addiction Services and Medicaid have also adopted emergency rules to expand access to telemedicine services.[10]
Additional Resources
It’s important that providers obtain strong health care compliance and legal guidance before proceeding with a new telemedicine program to ensure that all applicable state and federal requirements are satisfied. There are several layers of applicable legal requirements. Health care attorneys are available to assist providers in identifying these compliance requirements and structuring a telemedicine program to withstand regulatory scrutiny.
From a practical perspective, the American Medical Association (AMA) has also developed an excellent quick guide to telemedicine in practice.[11] The guide includes invaluable and practical advice with respect to professional liability coverage, coding and payment, practice implementation and other helpful resources. The Ohio State Medical Association (OSMA) also has an excellent telemedicine resource page, including a link to a free webinar focusing on consent and security issues as well as documentation and coding considerations.[12] Professional liability insurance carriers such as The Doctors Company have resources available to address frequently asked questions with respect to telemedicine malpractice liability.[13] Providers offering telemedicine services during the coronavirus pandemic are strongly encouraged to take a few moments to review these and similar materials.
For additional information regarding telemedicine or other healthcare regulatory matters during the coronavirus pandemic, please contact KJK Partner Kate Hickner, Chair of the firm’s Healthcare Practice Group, at keh@kjk.com or 216.736.7279.
[1] https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vice-president-pence-members-coronavirus-task-force-press-briefing-4/.
[2] See https://thehill.com/policy/healthcare/486182-trump-signs-83b-coronavirus-package.
[3] See https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet; https://edit.cms.gov/files/document/medicare-telehealth-frequently-asked-questions-faqs-31720.pdf.
[4] https://www.cms.gov/files/document/covid-19-nursing-home-telehealth-toolkit.pdf.
[5] https://oig.hhs.gov/fraud/docs/alertsandbulletins/2020/policy-telehealth-2020.pdf; https://oig.hhs.gov/fraud/docs/alertsandbulletins/2020/factsheet-telehealth-2020.pdf.
[6] https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html.
[7] https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf.
[8] See https://med.ohio.gov/DNN/PDF-FOLDERS/Prescriber-Resources-Page/Telemedicine/Telemedicine-Position-Statement.pdf; https://med.ohio.gov/Portals/0/DNN/PDF-FOLDERS/PRESCRIBER-RESOURCES-PAGE/4731-11-09%20FAQs.pdf.
[9] https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/public-health-orders/executive-2020-05d%2Btelehealth.
[10] See https://osma.org/aws/OSMA/asset_manager/get_file/434288?ver=401.
[11] https://www.ama-assn.org/practice-management/digital/ama-quick-guide-telemedicine-practice.
[12] See https://osma.org/aws/OSMA/pt/sp/telehealth.
[13] https://www.thedoctors.com/articles/covid-19-faqs/.
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