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More Detail on Telehealth Expansion Opportunities 

As previously reported, state and federal government are expanding access to telehealth and telemedicine services through the suspension of barriers and limitations during this public health emergency.   

Medicare Telehealth

On March 17, the Centers for Medicare Services (CMS) released guidance for the national public health emergency telehealth waiver, in the form of a Fact Sheet and a Q&A document.   Under this new waiver, Medicare can pay for office, hospital, and other visits furnished via telehealth across the country and include a patient’s places of residence retroactive to March 6, 2020 and effective to the end of the National Public Health Emergency. 

Key provisions of Medicare waiver include: 

  • The waiver eliminates the previous telehealth restrictions which limited to patients in designated rural areas and required beneficiaries to have the visit at a specific site to service. This means that among other locations, a patient’s home can be allowed as the originating site, and that telehealth can occur regardless of urban or rural. 

  • The waiver does not change the services that are covered. The list of services is available here: https://www.cms.gov/Medicare/Medicare-GeneralInformation/Telehealth/Telehealth-Codes.    

  • The waiver does not expand the list of providers. The list of providers includes: 

    • Physicians 
    • Nurse practitioners 
    • Physician assistants 
    • Nurse-midwives 
    • Clinical nurse specialists 
    • Certified registered nurse anesthetists 
    • Clinical psychologists 
    • Clinical social workers 
    • Registered dietitians or nutrition professional 

  • “To the extent the waiver (section 1135(g)(3)) requires that the patient have a prior established relationship with a particular practitioner, HHS will not conduct audits to ensure that such a prior relationship existed for claims submitted during this public health emergency,” CMS said.  This is to eliminate the barrier of the requirement that physicians must meet patients in person prior to being able to provide virtual coverage.   

  • Clinicians are not obligated to reduce or waive Medicare beneficiary coinsurance and deductible obligations, but may do so in accordance with the new OIG policy statement without risk of anti-kickback or beneficiary inducement enforcement.  Moreover, the OIG states that it will not view providing future services that may occur as a result of any free telehealth services to, by itself, be evidence of beneficiary inducement. 

 

CMS had a call scheduled today at 3:30 to discuss the 1135 waivers and the agency’s telehealth guidance today but had to cancel due to technical difficulties.  The call will be scheduled for a later date.  LAI and LeadingAge National are trying to secure guidance on whether telehealth can be utilized for physician recertification visits.    

Iowa Telehealth Waivers 

On March 17, Iowa Governor Reynolds issued an Proclamation of Disaster Emergency which implemented a number of changes and directives within the state including suspension of regulatory provisions which limit the use of telehealth in the state.   The proclamation recognizes that strict compliance with Iowa law that establish preconditions or restricts telehealth or telemedicine services or that require face-to-face visitation hinders the necessary action required to cope with this public health disaster.  Unless otherwise specified, the proclamation is effective from March 16-April 16.   

The proclamation specifically suspends the requirements outlined in Iowa Code § 147.137 (written, informed consent) and Iowa Admin. Code rule 653-13.11 (standards of practice--telemedicine).  The proclamation also suspends several administrative rules that restrict telemedicine for substance abuse treatment programs.    

HIPAA Waivers

On March 17, the HHS Office for Civil Rights (OCR) announced that it will “exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency.” 

This opens the door for providers to utilize easier methods, such as the use of personal devices and specific technologies, to interact via audio and/or video technologies with their patients and colleagues during this public health emergency.  The OCR makes clear that this technology is also allowed to assess or treat any other medical condition, even if not related to COVID-19.   Further, the OCR also states in the notice that it will not impose penalties against health care providers that do not have a business associate agreement in place with such technology vendors. 

OCR provides the following examples of technology that will be allowed: 

  • “…a video chat application connecting the provider’s or patient’s phone or desktop computer in order to assess a greater number of patients while limiting the risk of infection of other persons who would be exposed from an in-person consultation.” 

  • “…popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype…” 

The OCR provides the following examples of technology that will not be allowed because they are public facing: 

  • Facebook Live 

  • Twitch 

  • TikTok 

  • similar video communication applications are public facing 

The OCR provides examples of “HIPAA Compliant” vendors whom healthcare providers could choose to enter into a business associate agreement with.  (Disclaimer:  The OCR states that it does not endorse any particular technology, and it has not reviewed the business associate agreements of these vendors): 

  • Skype for Business 

  • Updox 

  • VSee 

  • Zoom for Healthcare 

  • Doxy.me 

  • Google G Suite Hangouts Meet 

 Providers should keep the following things in mind related to telehealth and privacy: 

  • The OCR encourages providers to notify their patients that these third-party applications potentially introduce privacy risks. 

  • Providers should also take as many security precautions as possible to protect patient information such as enabling “all available encryption and privacy modes when using such applications,” and having these conversations in private spaces to avoid others who are not involved in the patient’s care overhearing the communication. 

  • Further, even if a provider is using “everyday communications technologies”, providers should take care to record the interactions in the patient’s medical record to ensure that patients’ records are complete and accurate.