Telemedicine in the Time of COVID-19

March 22, 2020 - Scott R. Landau / David M. Eskew

Updates Regarding Telehealth Use and Reimbursement During the Coronavirus Pandemic

Following our March 17, 2020 update in which we discussed the federal government’s waiver of certain HIPAA restrictions for telemedicine services during the COVID-19 pandemic, many providers have had general questions regarding telehealth services and reimbursement during the current healthcare crisis.

Telehealth, telemedicine, and related terms generally refer to “the exchange of medical information from one site to another through electronic communication to improve a patient’s health. The remote nature of telemedicine makes it an ideal first-line tool for evaluation and management of COVID-19 without (1) the risks associated with in-person visits and (2) the threat of increased community exposure associated with traveling to in-person medical appointments. Because telemedicine is subject to myriad legal restrictions and limitations (in particular under Medicare), both federal and state government agencies have had to (and will likely continue to) issue emergency rules to waive regulatory barriers to telemedicine delivery and reimbursement. Below is a summary of notable developments to date regarding the use of telemedicine in the midst of the COVID-19 crisis:

HIPAA WAIVERS FOR PROVISION OF TELEMEDICINE

As discussed in our March 17 update, the HHS Office for Civil Rights (“OCR”) announced that, effective immediately, it would exercise “enforcement discretion” and waive penalties for HIPAA violations against healthcare providers that communicate with patients and provide telehealth services in “good faith” through “everyday” communications technologies such as Skype, Google Hangouts, Facebook Messenger, and FaceTime during the COVID-19 national emergency. As noted, this waiver applies to telehealth provided for any reason, not just services related to the diagnosis or treatment of health conditions related to COVID-19.

WAIVER TO EXPAND MEDICARE PAYMENTS FOR TELEHEALTH SERVICES

On March 16, 2020, CMS published a “blanket” waiver to allow Medicare payment for visits provided via telemedicine (prior to this waiver, Medicare only paid for telehealth services under limited circumstances). Under this new waiver, Medicare can now pay for office, hospital, and other visits furnished via telehealth across the country and including in patient’s places of residence starting March 6, 2020.  A range of providers, such as doctors, nurse practitioners, clinical psychologists, and licensed clinical social workers, will be able to offer and be reimburse by Medicare for three (3) types of “Virtual services”:

1. Medicare “telehealth visits” (which will be considered the same as in-person visits and will be paid at the same rates as regular, in-person visits);
2. Virtual Check-ins (Brief, patient-initiated communications via telephone call or information exchange via text, email, or patient portal, with practices they have an existing relationship with); and
3. E-visits (patient-initiated communications with their doctors via online patient portals).

There appears to be some overlap between these types of services, in particular “Virtual Check-ins” and “E-Visits.” Additional information can be found in the Medicare Telemedicine Health Care Provider Fact Sheet.

CMS ENCOURAGES EXPANDING TELEHEALTH FOR MEDICARE ADVANTAGE PATIENTS

On March 10, 2020, CMS issued guidance to Medicare Advantage (MA) plans informing them of their “obligations and permissible flexibilities” related to disasters and emergencies resulting from COVID-19. In the guidance, CMS advised that MA plans may provide enrollees access to Medicare Part B services via telehealth in any geographic area and from a variety of places, including beneficiaries’ homes.  CMS further advised that MA plans may waive or reduce enrollee cost-sharing obligations for COVID-19 related treatment delivered by telemedicine.  Such changes to MA plans can be implemented immediately by MA organizations without further approval from CMS.

DOJ CAUTIONS THAT FRAUD RELATED TO COVID-19 WILL BE PROSECUTED

In the wake of the Coronavirus pandemic, DOJ has cautioned the American public against emerging fraud schemes related to COVID-19 and has asked the public to report suspected fraud. On March 20, 2020, Attorney General William P. Barr directed all U.S. Attorneys “to prioritize the investigation and prosecution of Coronavirus-related fraud schemes,” and each U.S. Attorneys’ Office was mandated to appoint a lead prosecutor to coordinate prosecution of Coronavirus-related crimes as well as outreach and public awareness efforts. In recent years, telemedicine been an area rife for federal enforcement.  It was a focus of Department of Justice’s (DOJ) September 2019  Health Care Fraud Takedown — which included charges against 48 individuals submitting claims for more than $160 million involving fraudulent telemedicine companies. More recently, DOJ’s Medicare Fraud Strike Force announced charges against the owners of two telemedicine companies for their roles in a $56 million conspiracy to defraud Medicare.  DOJ has announced its first enforcement action related to COVID-19 fraud, and given AG Barr’s March 20, 2020 directive, we have no doubt that the federal government will vigorously investigate and prosecute fraud related to telemedicine during the COVID-19 crisis.

HHS-OIG WAIVES ADMINISTRATIVE SANCTIONS FOR REDUCING OR WAIVING PATIENT COST-SHARING OBLIGATIONS RELATED TO COVID-19 TREATMENT

In a Policy Statement issued on March 17, 2020, the HHS Office of Inspector General (“OIG”) notified physicians and other practitioners that they will not be subject to administrative sanctions for reducing or waiving any cost-sharing obligations (if they choose to do so) that federal healthcare program beneficiaries might otherwise owe for telehealth services furnished during the “time period subject to the COVID-19 Declaration.”  The Policy does not affect or waive providers’ responsibilities to bill only for services performed and to comply with all legal authorities related to proper billing, claims submission, and cost reporting, which, as noted above, will be still subject to investigation and possible prosecution.

NYS MEDICAID EXPANDS PERMISSIBLE USES OF TELEHEALTH SERVICES

In February 2019, NYS Medicaid expanded the permissible use of telehealth services. Under the NYS Insurance Law and Public Health Law, services that are covered under a comprehensive health insurance policy or contract cannot be excluded when the service is delivered via telehealth.  During the COVID-19 crisis, the NYS DOH is encouraging the use of telehealth for providing COVID-19 related services to Medicaid members.

NYS MEDICAID EXPANDS REIMBURSEMENT FOR TELEPHONE EVALUATIONS

Effective March 13, the New York State Medicaid Program will reimburse providers for telephonic evaluation and management (E&M) services for established patients where face-to-face visits are not recommended and it is medically appropriate for telephonic evaluation and management of the patient.  Where face-to-face visits are not possible due to the COVID-19 crisis, telephonic visits documents that are documented as clinically appropriate will be considered “medically necessary” for Medicaid reimbursement purposes.

NYS MEDICAID COST-SHARING WAIVER FOR COVID-19 RELATED SERVICES

To ensure that cost–sharing is not a barrier to testing, NYS Medicaid will cover services including testing for COVID–19 and for physician, clinic, and emergency visits without copays for members when the purpose of the visit is testing for COVID–19. Providers should follow CDC coding guidelines below when submitting claims to Medicaid.

COMMERCIAL REIMBURSEMENT EXPANSIONS FOR TELEHEALTH SERVICES

Many commercial payors have adopted temporary reimbursement policies that expand members access to telehealth services, including waiving cost-sharing and prior authorization requirements for COVID-19 testing and telehealth services.  Please check with the commercial payor networks in which you participate to determine what policies have been implemented to facilitate expanded telehealth services.

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As the COVID-19 crisis worsens, we expect that government and commercial payors will take additional steps to expand and encourage delivery of healthcare services via telemedicine.  We will continue to provide updates as more information becomes available.