Regulations Relaxed to Allow Increased Telehealth Usage During COVID-19 Outbreak

Fennemore Craig Client Alert

Regulations Relaxed to Allow Increased Telehealth Usage During COVID-19 Outbreak

Recently, the Trump Administration relaxed rules regarding the use of telehealth in light of the COVID-19 pandemic. In the past, Americans have mostly experienced healthcare on a face-to-face basis. Telehealth was developed as a delivery mechanism for rural or underserved areas but its usage has grown, especially among young professionals and those with conditions that require regular health maintenance checks. To date, the expansion of telehealth has mostly been slowed by payment policies that give less to providers for telehealth, as opposed to face-to-face, visits. CMS lessened this a bit last year.

The current COVID-19 pandemic is driving an explosion in telehealth for both mental and physical healthcare. The Trump administration has moved quickly to encourage telehealth to deal with the pandemic and the stress it is placing on the healthcare system. The new policies apply to all sorts of providers – doctors, nurse practitioners, psychologists, licensed social workers, etc. The telehealth service provided does not have to deal with COVID-19 to qualify for coverage.

Here are the main points:

  • The Center for Medicare & Medicaid Services (“CMS”) is implementing policies that will enable Medicare beneficiaries to access a wider range of covered telehealth services.
    • Covered services go beyond those related to COVID-19 and include routine visits.
    • Patients outside of rural areas can now use telehealth services and patients can access telehealth from home.
    • The established relationship rule, which requires that a patient and physician have a pre-existing relationship before telehealth may be used, is also waived for now so that those who become sick while away from home can receive care.
  • CMS’ covered services are listed here with corresponding ICD-10 codes. Generally, providers should code as if the visit was an in-person encounter and use the “place of service” code of -02 to indicate telehealth.
  • Medicare will now pay the same rate for in-person and telehealth visits. Medicaid programs will use the applicable facility payment rate.
  • The Department of Health and Human Services’ Office of the Inspector General (the “OIG”) is allowing for expanded cost waivers for Medicare/Medicaid beneficiaries so that they can receive and afford telehealth services.
  • In addition, rules are being relaxed to allow physicians to offer telehealth service across state lines in “emergency areas” in order to better serve patients.
  • The technology requirements are relaxed to allow telehealth via a telephone or other device with an audio/visual capability.
  • Private insurers such as Aetna are largely following suit, but each one is employing different rules and methods and will have different rates of payment.

While these changes are temporary and designed to respond to the COVID-19 pandemic, this could drive a larger push for more telehealth services and may be a sign of things to come. No end date has been announced for these changes as the reach of COVID-19 is rapidly evolving.

Many are praising these changes as they should allow for expanded access to healthcare in a manner that will lessen COVID-19 exposure for both providers and patients. What’s more, patients should be able to access affordable care without leaving home and exposing themselves or others to COVID-19.

On the other hand, telehealth raises concerns about privacy and security. The Coronavirus Appropriations Act makes no mention of the Health Insurance Portability and Accountability Act (“HIPAA”) or its implementing regulations.  While OIG and the Office of Civil Rights (“OCR”) have said that they will “exercise discretion” and may waive HIPAA violations for “good faith usage” of telehealth, it is not clear what, exactly, that means.

Though the relaxed regulations would allow telehealth delivery via things like FaceTime and Skype, providers should continue to provide telehealth services via HIPAA- and HITECH-compliant telecommunications methods as often as possible. They should also enter into business associate agreements with technology vendors, when applicable, and comply with the minimum necessary standard for disclosures of protected health information. Further, patients need to be wary of security and use appropriate means to contact providers. Patient should consider the security of their home WIFI network or internet access point when using telehealth.

In addition:

  • Providers still need to observe scope of practice regulations and be aware that the Ryan White Act imposes limits on prescribing controlled substances in a telehealth setting.
  • Providers must be wary of licensure and credentialing rules.
  • Providers need to be familiar with the laws that individual states may have regarding the usage and mechanisms for telehealth.
  • Some are concerned that an increase in telehealth may lead to increases in healthcare fraud and abuse. While this remains to be seen, providers should be aware that there may be some additional scrutiny for telehealth-related billing.
  • Some private insurers may continue to limit payments for telehealth services.


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