CMS's Interim Final Rule Provides for Expanded Medicare Telehealth Coverage

Client Alert

Gibbons Special Alert

April 13, 2020

Under the recently enacted CARES Act, the Secretary of Health and Human Services (HHS) was given the authority to waive the requirements of the relevant section of the Social Security Act containing all statutory Medicare coverage requirements for telehealth.

On March 30, 2020, the Centers for Medicare and Medicaid Services (“CMS”) at HHS issued its interim final rule with comment period (“IFC”) that expands access to telehealth services for people with Medicare. The complete IFC can be found here. Pursuant to the IFC, Medicare patients can receive care where they are, including if they are at home or in a nursing or assisted living facility. If a Medicare patient has COVID-19, he or she can remain in isolation and prevent spread of the virus. Similarly, even if a patient is not infected, it is now possible for the patient to use telehealth services to obtain care without having to travel to a physician’s office or hospital and risk exposure to others who may be ill.

Pursuant to the IFC, CMS will now pay for more than 80 additional services when furnished via telehealth. These include emergency department visits, initial nursing facility and discharge visits, and home visits, which must be provided by a clinician who is allowed to provide telehealth. For healthcare professionals providing care, a complete list of services by HCPCS and CPT Codes can be found here.

CMS is allowing telehealth to fulfill many face-to-face visit requirements for clinicians to see their patients in inpatient rehabilitation facilities, hospice, and home health. During the pandemic, individuals can use commonly available interactive apps with audio and video capabilities to visit with their clinicians. The IFC relaxes CMS’s “direct supervision” rule, which provides that for certain services, the physician must be present in the office suite. Under the IFC, the presence of the physician now includes virtual presence through audio/video real-time communications technology when it will reduce exposure risks for the patient or the healthcare provider.

The strict regulations governing which devices may be used for telehealth have also been relaxed during this Public Health Emergency (PHE). Previously, regulatory requirements stated that a phone did not meet the definition of an “interactive telecommunications system” for purposes of telehealth. The IRC changes that. At least on an interim basis, the use of cell phones for providing healthcare services is now permitted.

In addition, enforcement of compliance with HIPAA is being relaxed during this PHE. The HHS Office of Civil Rights (OCR) is exercising enforcement discretion and waiving penalties for HIPAA violations against healthcare providers who serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the PHE for the COVID-19 pandemic.

Home health agencies can provide more services to beneficiaries using telehealth, so long as provision of those services is part of the patient’s plan of care and does not replace necessary in-person visits as ordered on the plan of care. Hospice providers can also provide services through telehealth, if it is feasible and appropriate to do so, to Medicare patients receiving routine home care.

The IFC solicits public comment. If there are additional changes or relief that your organization needs in order to more effectively provide services during this PHE, then you should use this comment period to push for them. CMS wants to hear from you, and the Gibbons Healthcare Team can assist you with those efforts.

For more information about the IFC and regulations relating to telehealth that may apply to the treatment, payment, and operations of your healthcare services, and for additional information about current statutory and regulatory guidance issued by CMS and state agencies, please contact Bruce A. Levy.

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