Posted by Mallory Camerio on April 3, 2020
By: Jim Hoover, Burr & Forman, LLP
The changes made to
the requirements for telehealth services since the start of the COVID-19
pandemic have been swift and substantial. For the first several weeks, it seems
changes were made almost daily. As time
has passed, the changes to telehealth have stabilized enough that a summary of
the current telehealth issues is possible. However, changes may still be
forthcoming so the following is a summary of the significant topics related to
providing telehealth services as of the date of this article. Physicians should
continue to monitor announcements related to telehealth requirements as changes
will surely continue to evolve.
Medicare – On
March 30, 2020, the Centers for Medicare & Medicaid Services (CMS)
announced additional temporary expansion of telehealth services to Medicare
beneficiaries. CMS’s announcement of this new reimbursement flexibility builds
on its prior expansion of telehealth services to address the COVID-19 pandemic.
Prior to the March 30, 2020 announcement, CMS announced the following: (1) the
patient location requirement was being waived to allow the patient to be in
their home or other location; (2) the audio-video link can be something as
simple as Skype, FaceTime or Facebook Messenger video calls. However, the
audio-video link has to be a real-time audio and a one-to-one video connection,
and cannot be public-facing; (3) the patient cost share can be waived at the
providers’ discretion; and (4) CMS stated it will not audit to verify that
there is an established patient relationship.
CMS announced in its
March 30, 2020 announcement that it is now also allowing Medicare beneficiaries
to receive care via telehealth by: (1) adding more than 80 services to the list
of services payable under the Medicare Physician Fee Schedule when furnished
via telehealth, including emergency department visits, initial nursing facility
and discharge visits, critical care services, home visits for new and
established patients, and physical and operational therapy services; (2)
allowing clinicians to provide Virtual Check-In services to new patients
in the same manner as they previously could provide only to established
patients; (3) allowing licensed clinical social workers, clinical
psychologists, physical therapists, occupational therapists, and speech
language pathologists to provide e-visits; (4) allowing clinicians to provide
certain services by audio phone only to their patients; (5) allowing
clinicians to provide Remote Patient Monitoring, for acute or chronic
conditions, to both new and established patients; (6) removing certain
frequency limitations on Medicare telehealth; (7) expanding the use of
telehealth to certain home health and hospice services; and (8) expanding the
definition of “homebound” so that when a physician determines that a Medicare
beneficiary should not leave the home due to suspected or confirmed COVID-19,
the patient can qualify for the Medicare Home Health benefit.
Medicare
Miscellaneous Issues – Patient consent may be obtained annually and
obtained by ancillary staff. Direct
Supervision of services, such as incident-to services, normally require that
the supervising/billing physician be in the office suite and immediately
available. However, for the duration of the PHE, direct supervision can be
provided by real-time interactive audiovisual technology.
Billing
Medicare
– As an initial matter, telephone calls are still not the same as telehealth
for Medicare purposes. A full list of the Compliant List of Medicare Telehealth
and the Medicare Telehealth Code List for 2019-2020 is located on CMS’ website
at the following address https://www.cms.gov/Medicare/Medicare-General-Information/Telehealth/Telehealth-Codes.
CMS
is allowing payment for certain codes related to telehealth services because as
an example, CMS recognizes that some problems can be handled over the phone
without a face-to-face, but may require more than the 5-10 minutes. The codes
for established patients for physician or other qualified professionals
(nurse practitioners or physician assistants) include 99441 (requires 5-10
minutes of medical discussion), 99442 requires 11-20 minutes of medical
discussion), 99443 (requires 21-30 minutes of medical discussion).
Practitioners should report the E/M code that best describes the nature of the
care they are providing. Previous guidance was to use POS 02 that will cause
payment to be made at the lower facility rate. Alternatively, providers can
choose to use the POS code that most accurately reflects where the service is
performed and append modifier 95. This will cause payment to be made at the
higher non-facility rate.
Alabama
Medicaid – Medicaid normally requires separate credentialing for providers
performing telehealth; however, that restriction has been waived for the time
period for dates of service from 3/16/2020 – 4/16/2020. Medical providers may
bill established patient evaluation and management codes 99211, 99212 and 99213
for telephone consultations. Psychologists and behavioral health
professionals should bill 90832, 90834, 90837, 90846, 90847 and H2011. Verbal
consent must be obtained and documented in the medical record. These visits
will count against the patient’s office visit limit of 14 visits per year.
Blue
Cross and Blue Shield of Alabama – is allowing providers to bill for
telephone call treatment of existing patients under the established patient
office visit codes for dates of service from 3/16/2020 – 4/16/2020. They are
allowing codes up to 99213 with place of service code 02 for telehealth. No
modifier is required. The physician should be the one speaking with the patient
— not the office staff.
HIPAA – Over the past several weeks, the Office for
Civil Rights (“OCR”) has issued several notices regarding HIPAA in
light of the current COVID-19 pandemic. The OCR issued a Notification of
Enforcement Discretion for Telehealth Remote Communications during the COVID-19
Nationwide Public Health Emergency. OCR stated that it would relax its
enforcement actions with regard to compliance with certain aspects of HIPAA
(and not enforce penalties) in order to allow providers to better treat their
patients via telehealth. A health care provider that wants to use audio or
video communication technology to provide telehealth to patients during the
public health emergency can use any non-public facing remote audio or video
communication product that is available to communicate with patients. Health
care providers may use applications that allow for video chats, including Apple
FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, to
provide telehealth without risk that OCR might seek to impose a penalty for
noncompliance with the HIPAA Rules. However, communication applications that
are public facing should not be used. OCR further stated that it would not
impose penalties against health care providers for the lack of a Business
Associate Agreement with video communication vendors. The above applies to
telehealth provided for any reason, regardless of whether the telehealth
service is related to the diagnosis and treatment of health conditions related
to COVID-19. The OCR also issued additional guidance in the form of frequently
asked questions (FAQs) which are available at https://www.hhs.gov/sites/default/files/telehealth-faqs-508.pdf.
State Licensure – Most states have greatly relaxed
or streamlined their licensing requirements and application process to make it
easier for physicians to provide telehealth services across state lines.
However, the application process and requirements for each state differ so it
is extremely important for physicians to check with each state. For example,
the state of Tennessee requires the practitioner to complete and submit an
application, which can be found at: https://www.tn.gov/content/dam/tn/health/documents/cedep/novel-coronavirus/Boards-Executive-Order-Form.pdf.
The determination is made on a case by case basis. It appears most applications
are being approved by the Tennessee Department of Health because as of the end
of March 2020 the Department had received 61 applications and approved 59
applications, denied one, and one was under review. The State of Florida, for
purposes of preparing for, responding to, and mitigating any effect of
COVID-19, permits health care professionals not licensed in Florida to provide
health care services to a patient located in Florida using telehealth, for a
period not to exceed 30 days unless extended by order of the State Surgeon
General. The exemption applies only to out of state health care professionals
holding a valid, clear, and unrestricted license in another state or territory
in the United States who are not currently under investigation or prosecution
in any disciplinary proceeding in any of the states in which they hold a
license.
While the telehealth waivers and notifications have
slowed down in recent days, it is still very important for physicians to keep
updated on the various requirements from state licensing authorities and
payors.
Jim Hoover
practices with Burr & Forman LLP and works exclusively within the firms
Health Care Industry Group and primarily handles healthcare litigation and
compliance matters.
