Congress, the Centers for Medicare & Medicaid Services (CMS), states and private payers have all acted over the past 10 days to dramatically expand access to telehealth services. Below we summarize some of the recent developments.
Medicare
The Coronavirus Preparedness and Response Supplemental Appropriations Act signed on March 6 contains a provision to make telehealth services more widely available to Medicare enrollees in their homes (by removing geographic and origination regulations) during a declared emergency. Under long-standing law, Medicare covers telehealth for beneficiaries enrolled in fee-for-service coverage only under limited circumstances. Most notably, statutory restrictions limit coverage generally to telehealth services that originate from healthcare facilities in nonurban areas or areas with physician shortages, and not from patients’ homes. By regulation, CMS has declined to pay for telehealth services delivered by telephone, other than “virtual check-in” services, which are also available during the COVID pandemic. While recently enacted laws have slowly chipped away at these restrictions by giving more telehealth coverage options to enrollees in Medicare Advantage plans, and to individuals with end stage renal disease (ESRD) or substance use disorders, the overall limitations have continued to apply.
On March 17, CMS announced it had implemented these flexibilities, as permitted under the 1135 waiver authority, and issued further guidance related to implementation. Specifically, CMS extended coverage of telehealth services to beneficiaries regardless of where they are located. This means even if the enrollee is not in a healthcare facility or located in a nonurban or physician shortage area, a beneficiary can receive a covered telehealth visit. This new provision should allow beneficiaries to access telehealth from their homes or from other community locations.
In addition, CMS noted that it will not be enforcing a provision of the act during this public health emergency, which required the provider to have an established patient relationship.
In related guidance, the Department of Health & Human Services (HHS) Office for Civil Rights (OCR) indicated 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.”
Finally, HHS has granted a blanket waiver related to, among other things, out-of-state licensure, which will enable providers licensed in one state to provide services to patients in another state. This guidance does not preempt state-specific licensure restrictions, though many states have waived these restrictions in recent days.
The new telehealth coverage and related flexibilities are not permanent changes to the Medicare program. Instead, they are temporary waiver flexibilities that have been implemented by CMS in response to the COVID-19 emergency.
Medicare Advantage Plans
On March 10, CMS introduced significant new flexibilities for Medicare Advantage (MA) and Part D plans to waive cost-sharing for testing and treatment of COVID-19, including telehealth visits during the crisis.
Specifically, MA plans are required to:
- Cover Medicare Parts A and B services and supplemental Part C plan benefits furnished at non-contracted facilities…which requires that facilities that furnish covered A/B benefits have participation agreements with Medicare.
- Waive, in full, requirements for gatekeeper referrals where applicable.
- Provide the same cost-sharing for the enrollee as if the service or benefit had been furnished at a plan-contracted facility.
- Make changes that benefit the enrollee effective immediately without the 30-day notification requirement at Section 422.111(d)(3). Such changes could include reductions in cost-sharing and waiving prior authorizations as described below.
Specifically related to telehealth, MA plans may waive or reduce enrollee cost-sharing for telehealth services. MA plans may also provide enrollees access to Medicare Part B services via telehealth in any geographic area and from a variety of places, including beneficiaries’ homes, during this period of emergency.
Medicaid
States have broad authority in Medicaid to permit coverage for telehealth services, expand eligible technologies to include services delivered via video, telephone and email messages, establish a patient’s home as the originating site, and ensure provider payment parity so that telehealth services are reimbursed at the same rate as in-person services. Per CMS guidance, states are not required to submit a separate SPA for coverage or reimbursement of telemedicine services if they elect provider payment parity. As noted above, the recent Emergency Declaration gives states broad authority—via the Section 1135 waiver—to waive provider licensure requirements. This will play out on a state-by-state basis. Many states are rapidly revising their telemedicine policies to expand telehealth coverage within Medicaid. Manatt will be tracking state-by-state developments in this area.
Commercial
There is significant variability, especially for commercial payers, about which providers in a network may be reimbursed for telehealth services. Some payers provide broad coverage for telehealth services, some have contracts with third-party vendors to provide televisits for their members and others don’t cover telehealth at all. Plan-specific policies about telehealth coverage and reimbursement are thus highly variable, though an increasing number of plans are eliminating cost-sharing for telehealth and expanding coverage and payment for telehealth services.