Coronavirus Prompts Telehealth Changes for Medicare

In response to the COVID-19 pandemic the federal government has taken important steps to expand telehealth coverage for Medicare beneficiaries. The changes allow Medicare beneficiaries to receive a broader range of healthcare services through interactive telehealth communication with a healthcare provider – thus promoting social distancing to protect both patients and healthcare providers from unnecessary exposures.  

The Coronavirus Preparedness and Response Supplemental Appropriations Act, which provides $500 million for an emergency waiver expanding Medicare coverage for telehealth services, implements three important changes to existing Medicare telehealth coverage: 

• Telehealth services are covered regardless of where beneficiaries are located. Previously, Medicare only covered telehealth services for those who were located in a health professional shortage area or a non-urban area. Coverage now extends to telehealth services provided anywhere a beneficiary is located, even if it is not in a health professional shortage area or non-urban area.

• Telehealth services may be initiated from any location via smartphones with “audio and video capabilities that are used for two-way, real-time interactive communication.” Previously, beneficiaries were required to go to a medical facility and use an interactive communication device in order for telehealth visits with a remote provider to be covered. Telehealth coverage now extends to services provided via smartphone in a beneficiary’s own home. 

• Telehealth covered services now include all types of visits, including specialized office visits, mental health counseling, and preventive health screenings. Previously, covered telehealth visits were limited to routine office visits in special circumstances. Importantly, the expanded telehealth coverage is not restricted to visits regarding COVID-19 diagnosis or treatment. 

While the act states that covered telehealth services must be delivered by a provider or member of the provider’s practice who has treated the patient within the past three years, the Centers for Medicare & Medicaid Services (CMS) has issued guidance stating that the Department of Health and Human Services will not conduct audits to ensure that such a previous relationship existed for claims submitted during the COVID-19 pandemic. 

Healthcare providers and practitioners will also not be subject to sanctions for reducing or waiving cost-sharing for telehealth services provided to federal health program beneficiaries during the COVID-19 pandemic. The HHS Office of Inspector General (OIG) has confirmed in a March 17, 2020 memorandum that if a provider or practitioner chooses to waive or reduce cost-sharing for telehealth services, the OIG will not bring an enforcement action under either the federal anti-kickback statute or the beneficiary inducements civil monetary penalty statute for waiving or reducing such cost-sharing. 

In addition, the HHS Office for Civil Rights will exercise enforcement discretion and waive penalties for HIPAA violations against healthcare providers that perform telehealth visits via non-encrypted technology such as smartphones, FaceTime, or Skype, during the COVID-19 pandemic. 

Several private payers have already announced similar expansions to coverage of telehealth services. Many of these payers have waived co-pays for telehealth visits. Some states’ Medicaid programs may soon choose to follow suit by easing restrictions on telehealth service coverage.

To obtain more information, please contact the Barnes & Thornburg attorney with whom you work, or Laura Seng at 574-237-1129 or laura.seng@btlaw.com, Julie Veldman Harris at 614-628-1414 or julie.harris@btlaw.com, Heather Delgado at 312-338-5905 or heather.delgado@btlaw.com, or Sarina Glick at 614-628-1437 or sarina.glick@btlaw.com. 

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