Medicare Compliance & Reimbursement

As the 2019 novel coronavirus (COVID-19) continues to push healthcare organizations’ limits, the feds offer new guidance on how to navigate HIPAA under Medicare’s telehealth expansion.

Background: On March 17, the Centers for Medicare & Medicaid Services (CMS) announced an expansion of telehealth benefits for specific providers and their patients. The changes allow clinicians to provide telehealth visits to patients anywhere, not just in rural areas, and in their homes rather than at a healthcare facility (see Medicare Compliance & Reimbursement, Vol. 46, No. 6).

Reminder: Back on Jan. 31, HHS Secretary Alex Azar declared a public health emergency (PHE), which was followed by President Trump signing the Coronavirus Preparedness and Response Supplemental Appropriations Act on March 6 and issuing a national emergency declaration on March 13. The combination of the new law and the declarations made an 1135 waiver possible; the telehealth expansion is an example of a regulatory flexibility under the waiver.

“These changes allow seniors to communicate with their doctors without having to travel to a healthcare facility so that they can limit risk of exposure and spread of this virus,” CMS Administrator Seema Verma said in a release. “Clinicians on the frontlines will now have greater flexibility to safely treat our beneficiaries.”

FaceTime, Skype Are OK for F2F Encounters Now

“Patients will now be able to access their doctors using a wider range of communication tools including telephones that have audio and video capabilities, making it easier for beneficiaries and doctors to connect,” CMS says in its telehealth expansion release.

The feds have further clarified that non-public-facing technologies like FaceTime and Skype can be used for telehealth visits, but public-facing technologies like TikTok and Facebook Live can’t.

“We are empowering medical providers to serve patients wherever they are during this national public health emergency,” said Roger Severino, HHS Office for Civil Rights director. “We are especially concerned about reaching those most at risk, including older persons and persons with disabilities,” Severino added.

Hand-in-hand with the telehealth expansion came an OCR announcement of HIPAA enforcement discretion. “OCR 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,” OCR said.

And HHS also issued a waiver of certain sanctions for noncompliance with certain HIPAA requirements that day.

Further, the HHS Office of Inspector General (OIG) announced it would not apply “administrative sanctions for reducing or waiving any cost-sharing obligations Federal health care program beneficiaries may owe for telehealth services,” according to a March 17 announcement.

Remember: The telehealth visit doesn’t have to be for COVID-19 reasons to qualify for the expansion and exemptions. “OCR emphasized the need to ensure remote access to care for patients, especially those most at risk, regardless of whether or not the service is related to COVID-19,” note attorneys Rebecca Schaeffer and Cheryl Choice with law firm K&L Gates in online analysis. “Increasing access to telehealth will reduce the need for healthy or nonsymptomatic individuals to travel to facilities for health care, which in turn will help interpersonal interactions and further reduce transmission.”

Don’t Forget That State Laws Still Apply

Providers must also look to another authority which may have stricter requirements, Schaeffer and Choice remind. “Telehealth is heavily regulated by state law, and providers should ensure that they are meeting all state requirements prior to initiating telehealth services.”

“Many states impose licensure, technology, consent, or other procedural requirements. Unless waived by state agencies, these state laws must also be considered before launching telehealth services,” warns attorney Kim Stanger with Holland & Hart LLP in the firm’s Health Law blog.

Also, don’t take the OCR statement as carte blanche to ignore HIPAA requirements. “While these OCR pronouncements give covered entities some additional flexibility, it is limited, and overall HIPAA requirements continue to apply,” Schaeffer and Choice caution.

Heads up: Not only should you be checking in with your Medicare Administrative Contractor (MAC) and state boards, but you may want to revisit private payer telehealth policies, too, urges Stanger. “Absent state laws to the contrary, whether private payers will pay for the telehealth services generally depends on the payer contracts. Accordingly, just because a provider may render services via telehealth does not necessarily mean that the provider will be paid for such services,” he says.

Do this: Point your referring docs who are considering telemedicine to the American Academy of Family Physicians’ website on the topic, which includes software recommendations and billing tips: www.aafp.org/patient-care/emergency/2019-coronavirus/COVID-19-daily/telehealth.html.

Resources: Here are the telehealth expansion and HIPAA releases referenced above:

1. CMS telehealth release: Review CMS’ telehealth expansion announcement at www.cms.gov/newsroom/ press-releases/president-trump-expands-telehealth-benefits-medicare-beneficiaries-during-covid-19-outbreak.

2. CMS telemedicine fact sheet: Check out the details at www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet.

3. HIPAA Enforcement: See OCR’s notice of enforcement discretion at www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html.

4. HIPAA Waivers: Read HHS’ HIPAA waiver announcement at www.hhs.gov/sites/default/files/ hipaa-and-covid-19-limited-hipaa-waiver-bulletin-508.pdf.

5. OIG: Analyze OIG’s copay waiver notice at https://oig.hhs.gov/fraud/docs/alertsandbulletins/2020/factsheet-telehealth-2020.pdf.

6. COVID-19 FAQ: Find CMS’ COVID-19 FAQ with coverage information on a range of issues and across the Medicare spectrum at www.cms.gov/files/document/03092020-covid-19-faqs-508.pdf.