By Dinsmore's Timothy Cahill
Have telehealth benefits for Medicare beneficiaries been expanded during the COVID-19 outbreak?
Yes. On March 17, 2020, as part of President Trump’s powers under his March 13, 2020 declaration of a national emergency, the Trump Administration announced a significant expansion of telehealth coverage for Medicare beneficiaries in an effort to reduce the number of individuals who need to go to a doctor’s office or hospital. The list of covered telehealth services is available here. Services can be provided to a Medicare beneficiary in that individual’s home or any other health care facility. The visits are considered the same as in-person visits and are paid at the same rate as regular, in-person visits. Generally speaking, reimbursement is eligible only for professional services provided by physicians and certain non-physician practitioners. CMS published a list of FAQs that provides detailed information about how this waiver to the existing telehealth billing requirements works. A factsheet published by CMS on this issue is available here.
Is any specialized equipment needed to furnish Medicare telehealth services under this expanded benefit?
Under the expanded telehealth benefit, any mobile computing devices that have audio and video capabilities to provide two-way, real-time interactive communication is considered acceptable technology. The Office for Civil Rights will exercise enforcement discretion and waive HIPAA penalties for health care providers who are interacting with patients in good faith through everyday communication technologies, such as FaceTime or Skype. The Notice of Enforcement Discretion is available here. Providers should consider simple ways to obtain the informed consent of a patient to interact through these mechanisms. Please see the telehealth FAQs published by CMS for more information.
How long do these expanded telehealth benefits continue?
The expanded telehealth benefits remain in effect until the Public Health Emergency declared by the Secretary of the Department of Health and Human Services on January 31, 2020 ends.
Are there any state law considerations with providing these kinds of telehealth services?
The State of Ohio Medical Board has published FAQs about the circumstances under which a physician or physician’s assistant may prescribe medication to a patient when the provider has never personally examined the patient. That guidance is still in effect and is available here. Since the coronavirus outbreak, the State of Ohio Medical Board has published telemedicine guidance available here. The Ohio Hospital Association has reported it is working with the State of Ohio Medical Board to relax certain rules requiring in-person patient encounters. We will provide more information on that issue as it becomes available.
Can providers waive copays or cost-sharing for telehealth services?
Yes. CMS administrator Seema Verma, stated on March 17, 2020 that CMS would exercise, “enforcement discretion when it comes to collecting copays, so that costs won’t be a barrier.” The Medicare coinsurance and deductible would generally apply to Medicare telehealth services; however, the Office of Inspector General is providing flexibility and exercising enforcement discretion for health care providers to reduce or waive cost-sharing for telehealth visits paid by federal health care programs. This may not apply to some telehealth services.
Does the United States Drug Enforcement Agency (DEA) prohibit prescribing controlled substances through telemedicine?
The DEA has required a provider to examine a patient in a traditional in-person physician encounter before controlled substances could be prescribed for the patient through telemedicine. In light of the public health emergency issued by the Secretary of the Department of Health and Human Services (HHS) on January 31, 2020, the DEA is relying on an exception to the Controlled Substances Act to allow DEA-registered practitioners to issue prescriptions for controlled substances when an in-person medical evaluation has not been conducted when all of the following conditions are met: (1) the prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice; (2) the telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system: and (3) the practitioner is acting in accordance with applicable federal and state laws. State law, however, may still require an in-person physical exam or preexisting physician-patient relationship before prescribing controlled substances. More information on the DEA’s actions is available here.