Navigating the Use of Telemedicine During this Emergency Period
As part of the emergency measures to address COVID-19, all levels of government are facilitating, and even encouraging, the use of telemedicine technology. The primary goal, of course, is to reduce the risk of transmission of COVID-19 to and from patients who would otherwise present for in-person services. The use of telemedicine is also providing an opportunity to reduce in-person patient volumes and also to provide health care providers with the potential means of rendering patient care from home.
In response to the current state of emergency, CMS has expanded the potential for Medicare reimbursement. Many state Medicaid programs and commercial payors have followed suit. HIPAA enforcement with respect to certain non-compliant technology has been relaxed. The DEA has made an emergency exception related to telemedicine prescriptions. State governors have issued emergency orders with respect to licensure and telemedicine requirements, and certain professional licensing boards have issued similar guidance.
While the measures taken to date represent unprecedented steps forward, these measures are also understandably creating confusion for providers. The expanded billing requirements for eligible telemedicine services differ from one payor to the next. These billing requirements often do not accurately reflect the applicable professional practice standards. There additionally remains variability among the states in relation to licensure exceptions, prescription requirements and applicable telemedicine exceptions, which, in certain instances, are also more restrictive than exceptions made at the federal level.
Attorney with Hall Render
Attorney with Hall Render
Attorney with Hall Render
Hello everyone. Good afternoon to our attendees on the East Coast. Good morning to our attendees on the West Coast. Thank you for participating in our webinar, Navigating the Use of Telemedicine During the COVID-19 State of Emergency. Again, my name is Chris Eades. I’m one of the members of our telemedicine team here at Hall Render.
I’m joined today by two of my colleagues, who are also part of our telemedicine team, Regan Tankersley and Michael Batt. We only have an hour to work with here, and so we’re going to spare you the traditional reading of the biographies.
If you’re interested, if you’d like to contact any of us following the webinar, our contact information is both in the slides and can also be found at hallrender.com. We have other teammates as part of our telemedicine team. Their information is also on our website, hallrender.com.
To put our presentation in context though, I’ll mention quickly, my virtual care practice is focused more on the professional practice elements of telemedicine. Things like licensure, consent, prescriptive authority, workflow, et cetera. Regan is more focused on the reimbursement elements, and Mike is more focused on the technology and privacy side.
We’ve organized our presentation accordingly. Prior to jumping into the content rather, we do want to take the opportunity to extend a quick thank you to those healthcare providers on the line, as well as the administrators and other individuals working on the front line during the healthcare crisis we’re facing.
We do sincerely appreciate what you’re doing. It’s our hope that our webinar today may shed some additional light on some of the telemedicine alternatives, that are available to you during this period and perhaps after as well.
We have received an incredible number of calls over the past few weeks on these topics, which is of course why we decided a webinar might be important. Really across the spectrum, those providers that have never used telemedicine and are needing to ramp up quickly. Those providers that are doing a lot of telemedicine, but desire to use it in different ways now.
Irrespective of where you are on that spectrum, it’s a challenge. It’s been difficult to keep pace with all of the changes. Even three weeks ago, before this particular healthcare crisis, the regulatory framework was very difficult to navigate. Mainly due to the variability among the states and really lack of direction at the federal level.
Now of course, we’re seeing near daily waivers and exceptions that are coming into play, at both the federal level and state level. It’s been difficult to keep pace. In fact frankly, just after we had completed our slides last evening, as you may have seen this morning, CMS issued an Interim Final Rule, well over 200 pages.
Which makes significant and wide sweeping changes to CMS’s telehealth program. We spent the better part of last night evaluating those changes. They are quite significant. They include a dramatic expansion of eligible telehealth services, among other significant changes.
We’ve gone back to supplement this slide deck with those particular highlights, and we will work that in as well. In this context, here’s our goal really today in terms of agenda. We’re going to work through some of… just quickly, the telemedicine essentials, things you really need to understand. Concepts you need to understand, to understand the rest.
We’ll highlight the basic rules of the game for telemedicine at the federal and state levels. We’ll talk through the significant changes we’ve seen over the past few weeks. With this overview of the laws and regs, we’ll then kind of focus on some particular items.
Professional practice considerations, some reimbursement considerations, and technology and privacy considerations. We’ll then kind of bring it full circle and talk very quickly, and sum up with what we think would be a good game plan in terms of strategizing where you go at this point in time with telemedicine.
With that, I’m going to dive right into essential terminology. Originating sites, you need to understand we’re talking about where the patient is physically located when receiving telemedicine services. Distance site, is where the telemedicine provider is located when providing those services.
Telehealth and telemedicine, you’ll note I have not provided a definition for these terms. Quite frankly, I’ve not done so, because there’s not one definition. There are a lot of different definitions in terms of how those terms are used in those definitions. Payers use those terms differently.
States, licensing boards all use those terms differently. That’s takeaway number one, is that variability, but that terminology is important. The way it is typically used, tells us what constitutes… either for reimbursement or from a professional practice standpoint, what constitutes telehealth or telemedicine.
That’s where it’s going to tell us, do we need to do this by way of a synchronous audio-video connection? Can it be phone only? Can we use a synchronous store and forward? Meaning, can we send images or information, not in real time to a provider? Then of course, remote patient monitoring.
These are the basic terms, but you are going to see why the variability in terms of how those terms are used. We’ll even get to some of the significant changes, that involved Medicare’s view of a qualifying originating site.
Also, very, very important… and this is creating a lot of confusion with all of these changes. I believe it’s important to think very basically about telemedicine in terms of two big buckets, a professional practice bucket and a reimbursement bucket. Within each of these buckets, there are state laws that bear on professional practice and federal laws.
Same with reimbursement, state law and federal law. You have to pay attention to what bucket you are dealing with, when you’re trying to figure one of these telemedicine concepts out. Let me give you a quick example. I’ve fielded a number of calls over the last two weeks. Providers that have seen that Medicare has made a licensure exception.
What these providers want to know is, “Does that mean I can go into another state and practice?” The answer to that is, no, not necessarily. Medicare has created a licensure exception that allows you for purposes of Medicare reimbursement, to potentially be in another state, provide an eligible service and be reimbursed.
That reimbursement exception that Medicare has stated, does not negate the state-specific professional conduct rules requiring licensure. Unless those have also been waived by the state, you still need to tackle that issue before you can provide services. That’s an important example in terms of where you’ve got to pay attention.
Is this a CMS Medicare change or is this a professional practice change? You think about it in terms of these questions. Ultimately with professional practice, can we provide this service through telemedicine? Now, can we do it maybe through a telephone call?
Who can provide the service through telemedicine? Doctors, APRNs, PAs, what about genetic counselors, physical therapists, et cetera? What requirements do we need to meet to provide these services? What technology can we use and how? That’s the professional practice side.
On the reimbursement side, it’s pretty simple. If we can do these services, if we can provide these services, can we get paid for them and by whom? The rules for Medicare and the rules for Medicaid and the rules for commercial payers, are all different in this regard.
I do want to note, with all this variability, there is one universal truth. That is, if you’re going to provide healthcare services through telemedicine or telehealth technology, you’ve got to comply with the same standard of care as you would need to meet if you were doing the visit in person.
That needs to always be in the backdrop here in terms of, is this something that we can do? Essential rules and regs, whether it’s COVID-19 related or not. These are fundamental federal laws and regs, and state laws and regs you need to pay attention to. The Medicare rules obviously relate to the reimbursement bucket.
DEA rules on prescriptive authority and controlled substances through telemedicine, relate to professional practice. There are a host of other agency rules out there as well, that potentially relate to professional practice. Then the state laws, as I’ve said, are very highly variable.
The Medicaid rules are different one state to the next, in terms of what qualifies for reimbursement through telemedicine. Parity provisions, most states at this point, pre-COVID-19 have a requirement that commercial payers must reimburse for services provided through telemedicine, if they provide reimbursement for an in-person visit.
There can be qualifications. Those can vary state to state, and not all states have them. They’re there and they are helpful, irrespective of the current healthcare crisis. Professional practice boards, medical licensing boards, psychology boards, each of those boards state to state, routinely have their own guidance.
Then there are scope of practice considerations in terms of supervision and such, that you always need to pay attention to. We’ll work through this quickly, to give you a sense of what we have and what’s changed. There has been massive change in very little time. Really, in the last two and a half weeks I’d say everything has changed.
At the federal level, we’ve seen CMS waivers, some multiple rounds of waivers, statements regarding non-discretionary… or discretionary non-Exercise such as relates to HIPAA, related FAQs from various agencies. We’ve seen legislation, including the CARES Act at the end of last week.
Then last night, as I mentioned, the CMS Interim Final Rule, just issued. We have DEA exceptions and other agency waivers which we’ll highlight. I do want to point out just quickly, with the CARES Act… and obviously there’s a whole lot more there.
One of the significant pieces was to authorize HHS and CMS, to make more aggressive and affirmative changes to the telehealth program. That just happened the end of last week. We were curious as to when those changes would be made. As I mentioned, the first big round of that was last night, CMS Interim Final Rule.
As this relates to Medicare, Regan’s going to get into more of the specifics. I wanted to highlight some of the major changes quickly. This rule vastly expands the list of services that may be provided and reimbursed through telehealth technology.
Even with some of these geographic changes that we’ll talk about, the list of what could be an approved telehealth service was still pretty small, relatively speaking. That’s been drastically expanded to capture things like ED visits, initial nursing facility and discharge visits and other things that Regan will expand upon.
Also, changes in reimbursement to reflect non-facility place of service. A recognition that, because providers… at least during this period, are going to be using telemedicine more frequently. There’s going to be more of an opportunity to bill for that encounter, as you would an in-person encounter.
There is expansion of the potential use of audio-only visits. Again, Regan will I think dive deeper on that piece. We will expect to see more guidance around it. It’s really Medicare saying, “We will adopt and utilize those codes that we’ve not previously recognized, that would allow for audio-only encounters between a practitioner and a patient.”
Expands the practitioners who can perform eVisits and virtual check-ins. Made some clarifications and some expansion with respect to remote patient monitoring, and importantly, expanded some opportunities for physicians to supervise their clinical staff by way of using telehealth.
If you have a quarantine physician, there’s now in certain settings, an opportunity to be quarantined and yet still supervise those nonphysician providers through a telemedicine technology. There is a link here to the Final Rule, the interim rule that was issued last night.
All right, Medicare before COVID-19, as I said, had to be a designated telehealth service. Had to utilize across the board a synchronous audio-visual technology, or designated store-and-forward technology. The patient had to be at a qualifying originating site, which was very narrowly drawn.
A geographic requirement, had to be in a designated rural area. A location requirement, had to be at a physician office or at a hospital, or critical access hospital and at a few other locations. All of this has been changed. In some ways, very dramatically. Qualifying originating site, much broader now.
Almost as broad as it could be, in the way of, there’s no longer… during this period of emergency, a geographic restriction. You don’t have to be in a rural area, you can be in an urban area. You can be really anywhere in the United States and meet this requirement.
The site restriction has been done away with now as well, so that patients can receive services in their homes or in other locations that were not on the more limited list of eligible sites. I mentioned professional licensure, it’s been waived for purposes of Medicare reimbursement, as long as you are licensed and in good standing in another state.
Preexisting patient relationship, you may have seen when the first round of changes came out. The first round of waivers, there was a requirement. Yes, you can use telemedicine, but you have to have a preexisting relationship with a patient which was spelled out and defined. That’s been done away with.
You can now use telehealth in this context for new patients as well as existing patients. Also, importantly, as of last night in the Interim Final Rule, the existing patient relationship has been done away with for eVisits and virtual check-ins. That had not changed until last night.
You can now use eVisits and virtual check-ins with respect to new patients. All right, I’m going to move on to DEA. I’ve included a slide on the Ryan Haight Act. This was kind of where we started with prescription analyses, in the context of telemedicine pre-COVID-19.
That’s because this federal law requires an in-person visit, before there is a prescription of a controlled substance through telemedicine. It provides for a few narrow exceptions, but they were just that. Very narrow and didn’t really come into play all that often.
Now, the DEA has invoked… about a week and a half, two weeks ago, its an emergency authority to permit temporary waiver of that in-person exam, for prescribing controlled substances to new patients through telemedicine.
As long as the prescription is issued for a legitimate medical purpose, by a practitioner acting in the usual scope of the profession, scope of practice. It’s got to be an audio-visual, real-time communication. This is important. This goes back to that concept of the two buckets.
You’ll see there’s more opportunity to provide telephone-only consult, perhaps for purposes of Medicare reimbursement. That does not supersede this DEA requirement at this time, that if you’re going to prescribe a controlled substance, you have to have an audio-visual interactive communication in play.
You also have to comply with the pertinent federal and state law, which I’ll come back to. HIPAA, Mike will speak more about this. There has been a statement that there will be non-discretionary exercise.
OCR will not penalize for HIPAA violations, in relation to using non-HIPPA compliant technology to accomplish telemedicine or telehealth as long as it’s non-public facing. This means you can use FaceTime at this point in time.
Now, there are some considerations that Mike will get into. This is also an opportunity to more easily and quickly get ramped up with a telemedicine encounter, using technology that may otherwise already be available. All right, so those are all kind of federal law and federal level items.
I want to mention state law and regulation. I mentioned the variability that was in place before any of this started. That’s still there. We’re seeing of course a lot of action at the state level, in the way of emergency orders. Medicaid waivers and exceptions, and professional licensing boards making an exception.
Just as there is a lot of activity at the federal level, there’s just as much activity at the state level. The challenge continues to be though, those efforts are variable. I’ll speak to licensure in a minute.
We see some themes, but there is still variation in these changes, in a way where ideally if you’re going to manage risk, decide on how you need to do telemedicine in a way that’s compliant, you still need to understand what the rules of the game are in the states where you will be offering those services. Some of the themes are licensure exceptions.
We’re seeing a lot of states more generally, allow for the use of telemedicine technology in the lieu of in-person requirements that may otherwise be found in the state regs. We’re seeing increased use of telephone calls in lieu of audio visual. We’re also seeing a lot of professional boards make specific exceptions for their practitioners in their states.
Let me talk quickly about professional licensure. As I mentioned, I’ve gotten a lot of questions about this. First, the confusion regarding Medicare and Medicaid exceptions, which I’ve already mentioned. Other things that you need to be mindful of.
Well, first of all, not all states have enacted a licensure exception. Most at this point have, but not all. Secondly, it’s typically in nearly all of those jurisdictions. It’s not as easy as just going into that jurisdiction and practicing. There’s typically a requirement that you submit an emergency application or attestation.
Next, you have to pay attention to whether the licensure exception is specific only to physicians or all licensed healthcare providers. In some states, the emergency orders that have been entered, speak specifically to physicians.
You may find that other licensing boards have waived, but you really need to pay attention to that and not just assume that PAs or APRNs or other providers, can enjoy the same licensure exception. Some states are qualifying what you can do and taking advantage of the licensure exception.
Perhaps a requirement that you have to have a pre-existing relationship with the patient that’s in that state, or your activity must specifically be related to COVID-19 activities. Long and short of it is, you do need to pay attention to what those states have to say.
It’s just not as simple as they’ve kind of opened up the border and said, “Come in and practice medicine or your specialty.” Informed consent, also a challenge right now. A, because how do we do it? B, we may not be able to get something in writing. Lots of questions here as well. This falls typically into both buckets.
The reimbursement rules will have requirements for obtaining consent, and the professional practice standards will as well. There is a lot of variability state to state, but I would say this is generally true.
In most jurisdictions and with most payers, verbal consent from the patient during the encounter is going to be sufficient, as long as the telemedicine practitioner documents on his or her end. That’s not universal, but I can tell you that’s in nearly all settings at this point.
You still though need to consider that dialogue. Both for purposes of risk management, and for a more meaningful and well-organized telemedicine encounter. You need to identify the patient. Is this an adult? Is this a minor? If it’s a minor, you need an authorized representative participating in that visit. We need to think through that.
Two, you need to discuss the risk benefits and limitations of virtual care. That’s going to depend upon the service you are providing. It may not need to be a whole big discussion, but maybe it is, because again, we’ve got to meet the same standard of care. Typically, we want to remind patients that this is not intended to be an emergency visit encounter.
If you’re having an emergency or something happens to our connection and you have an emergency, you need to dial 911, come to the ED or pursue a different option. We want to clarify what the followup responsibilities are. Are we supposed to call you? Are you supposed to call us? That should part of the scheduling process and/or this dialogue.
We need a backup plan. What if the feed goes out? What if we have an issue with technology? This may be a very sensitive encounter. Let’s map out ahead of time how we’re going to deal with that if the video drops or we have some other issue.
Also, pay attention to again, state-specific requirements may require more, is part of that dialogue. Behavioral health is a great example. A lot of states require when it’s a behavioral health encounter, that you provide specific information to the patient. For example, the access to facilities or assistants that are geographically proximate to the patient.
If they need urgent care, where can they go that’s close to them if they need? You do need to pay attention to those issues as well. Talking points, during these times, you do have to just ramp up quickly on occasion. Ideally, we need to discuss this workflow and our talking points, depending upon the service we’re providing, so that we map this out.
If we can’t get an informed consent document signed by the patient… and we need to decide if we can or not. If we can’t, it’s going to be really important that we do address these items as part of our dialogue, and that practitioners understand they need to do so and why. Developing a script or some talking points around this can be very, very helpful.
Lastly, I’m going to wrap with prescriptions. I’ve already mentioned the DEA exception. I’ve already mentioned how that may differ from some of the payer requirements. Also, pay attention to state law. Most states have prescription requirements through telemedicine, that are more restrictive than the exception made by the DEA.
There are frequently prohibitions on prescribing opioids through telemedicine, which creates a challenge right now in situations like chronic pain management. There may be specific medical record, treatment plans requirements. Pay attention to those state rules, because the DEA’s exception is contingent upon compliance with those state rules.
As I mentioned, they are quite frequently more restrictive in terms of what you can prescribe in the way of a controlled substance, in particular through telemedicine. All right, I’m going to pass the baton now to Regan, who will focus on some reimbursement.
Thank you, Chris. This next portion of the presentation will focus on reimbursement considerations, focusing primarily on Medicare reimbursement. That has been the biggest change and impact that we have seen under the current public health emergency. I see the timeline of events, for purposes of Medicare coverage of telehealth services in three buckets.
We have the world as it existed prior to the public health emergency, prior to the 1135 waivers. As Chris had already discussed, Medicare coverage of telehealth services in the pre-public health emergency world was very limited. There was the geographic restriction for the location of the patient. The patient had to be in a qualified originating site.
The only way that a practitioner, as a distance-site practitioner could bill and be paid for those services as telehealth services under the Medicare policy, was if that patient was located in a qualified originating site. Again, it had a geographic restriction.
Distance site was the location of the practitioner, generally not restricted. For federally qualified health centers and rural health centers, were not viewed as appropriate locations for distance-site practitioner. There were the defined set of telehealth services, within the Social Security Act that existed in the statute.
This in my description here, I will pivot from something Chris had said about, there isn’t a good definition between telehealth and telemedicine. For Medicare payment purposes, telehealth is defined within the Social Security Act, within that defined statutory provision.
Meaning, only those services as identified within the act or as updated by the secretary of HHS on an annual basis, can be covered and paid for under Medicare as a telehealth service. Which we will distinguish from other types of virtual communication services.
For purposes of our discussion here, recognizing that there is a distinction for Medicare payment for telehealth versus other types of communication services. For telehealth services to be provided under that strict statutory provision, is generally required a HIPAA compliant two-way audio-visual communication.
That was also somewhat limited, as to the types of platforms that could be available for use by the beneficiary on the originating site, and by the physician or other practitioner on the distant site.
The next bucket in the time table related to Medicare coverage for telehealth services, would be our coverage post the 1135 waivers, once the emergency period began. I would say this bucket up until 5:30 yesterday, was a continuing bucket.
We’ll get to that in the next set of the timeline, is that the world all of a sudden changed yesterday with the release of the Interim Final Rule. Initially, when we were first seeing the coverage expansion under the waivers, what it did initially was remove the geographic restrictions.
Which was big for Medicare payment purposes, because they always had that geographic restriction. That meant a patient could be located anywhere within the United States, including in the patient’s home.
The patient’s home was then added to the statutory provision as a qualified originating site. Even though there was not going to be a recognized site, originating site facility fee for that location. It was a very broad expansion, to allow these patients to receive services in their home.
It then included the FQHCs and the RHCs. Those became added as an approved location for a distance-site practitioner. Therefore, if a beneficiary’s primary care physician was actually a practitioner at an RHC or an FQ, they would not be limited by that provision.
Those physicians could still… or practitioners could still be that distance-site practitioner for purposes of a telehealth visit. Again, as the first wave of waivers are going through, and we are seeing changes within the emergency legislation that authorized waiver authority.
The guidance removed that requirement, that a patient would have had to have been seen within the last three years or be an established patient. CMS and HHS had originally said they were not going to enforce or audit that provision. It was subsequently changed within the waiver guidance to remove that restriction.
That is where the world existed under the waivers. As we move forward… and again, this is prior to the Interim Final Rule issued yesterday, we continue to see some more increased flexibility for purposes of Medicare covers of telehealth. Increased flexibility for home dialysis patients.
Increased flexibility for hospice re-certification. Those required face-to-face periodic evaluations or re-certifications. Those were going to allow it to be completed through telehealth. Again, initially, all of this was limited to the very defined set of telehealth services.
Medicare has those described in the statute. They publish a list every year. It’s on the CMS website of those identified approved telehealth codes, that can be built and provided as a telehealth service.
There is an enforcement discretion during this emergency period, as Chris had mentioned, regarding OCR was not going to enforce HIPAA requirements for technology used in good faith. That allowed Medicare beneficiaries to be able to access their practitioners via smartphones, via two-way video such as FaceTime or Skype, anything that was not public facing.
There had been some guidance from the OIG, that they were not going to pursue enforcement action for provider waiver of cost sharing related to these telehealth. Now eventually, other types of virtual communication services. That is where we were. Then Friday of last week when the CARES Act was signed, that gave us some additional expansion.
We had the original waivers, what Medicare was allowing under the waivers that existed versus the waiver authority. Under the original waivers again, we only had coverage for those defined set of telehealth services within that identified section of the Social Security Act.
All definitions within the Social Security Act still applied, if they required real-time two-way audio-visual communication. You look at those first set of waivers, the waiver authority granted initially was somewhat limited. It basically removed that geographic restriction.
It allowed the originating site to be a patient’s home, but it did not provide for any kind of a payment for an originating site facility fee, when the patient was located in the patient’s home. What did the waiver authority do?
This is where when we were preparing our materials yesterday initially, we thought we would be making our distinctions between the current waiver and what was created under the waiver authority. Which was the CARES Act signed last Friday.
When we read it, it looked like it was really going to be able to give the secretary, that very expansive authority to really waive a lot of those requirements that existed within the Social Security Act, very defined section around telehealth services.
When we were looking at that initially, the question we had was, “Well, we have the waiver authority. When do we expect to get those expanded waivers?” If you recall from the first set of emergency spending legislation, it took several days to actually get to that official waiver from the secretary to implement some of those telehealth provisions.
Well, we didn’t have to wait for very long, because as of around 5:30 Eastern Time last night, CMS issued an Interim Final Rule, which was really implementing a lot of changes under this recently established increased waiver authority. We provide the link to the CMS fact sheet, regarding these services in our slide.
This is very significant for purposes of telehealth coverage under Medicare, because now that it has expanded that defined list of services that Medicare will pay for as a telehealth service. When I say telehealth service, that means that those are the services that are still required to be provided real time, face to face, audio and visual.
That is a telehealth service and that criteria hasn’t changed. There is a lot of commentary discussion in the rule around other types of services. For purposes of Medicare coverage and payment, that list of telehealth services that can be paid for has been expanded to include ED visits, initial nursing facility, discharge, home visits.
Things that really before, Medicare had determined were not appropriate to not be provided face-to-face, because of the risk to the beneficiaries and the risk to the provider community, of the virus, they are increasing a lot of this flexibility. To provide these services remotely, to protect both the beneficiaries and the healthcare providers.
Very importantly, the services must still be provided by a clinician that is allowed to provide telehealth services under the statute. That is still an important distinction. A lot of these services now can be provided to both new and established patients.
One of the important components listed on the fact sheet… and then if you go through the rule, is that there is a bullet point in the fact sheet, that providers can evaluate beneficiaries who have audio-only phones. This is an important distinction. What has not occurred is the waiver of that two-way video, visual communication for our telehealth service.
What CMS has done, is actually taken the existing CPT codes within the manual for telephone-only services, that Medicare has always considered to be non-covered, they are now covering those.
This gives increased flexibility for practitioners and providers, to be able to have essentially an E&M telephone call visit, recognized by those existing CPT codes for telephone-call-only, audio only, so we don’t have to be concerned about beneficiaries who don’t have access to two-way communication or access to a smartphone.
Those are now going to be covered CPT codes. Again, making the distinction, those are not telehealth codes. Those don’t fall under the statutory provision for telehealth. This is just taking those defined set of telephone-only CPT codes, which some payers have already been paying for. Medicare is now going to pay those as covered.
Further, for telehealth under the expanded provisions under the Interim Final Rule, telehealth… and again, when we say that two-way video, audio-video communication, it can be used to fulfill many of the face-to-face visit requirements that clinicians were subject to prior, including inpatient rehab, hospice, home health.
That there were several types of services that way, that could only be provided in-person, that now under the public health emergency during this time period can be provided via telehealth. Again, just some highlights from the Interim Final Rule regarding, home health agencies can provide more services to beneficiaries using telehealth.
It has to be included in the plan of care. More flexibility for hospice providers, getting those routine services. Importantly, if a physician determines that a beneficiary should not leave their home due to a medical condition, or are they suspected COVID-19 and that beneficiary needs skilled services?
That will qualify the beneficiary for services under the Medicare home health benefit. Another important change under the Interim Final Rule, is that for purposes of a physician incident to services that require direct supervision, that direct supervision can now be met through a virtual presence.
Meaning, that two-way audio-visual communication does not have to be provided in-person in the office suite. That also extends to services provided in a hospital outpatient department. Medicare is revising the definition of direct supervision, that lives within the regulation relating to diagnostic services.
That also feeds over into hospital services, that anything requiring that direct supervision during this emergency period, you’re permitted to provide that direct supervision through a virtual presence. I’ve included this slide from the original March 17th, 2020 fact sheet, that talked about telehealth visits versus virtual check-ins and eVisits.
I think it’s still a good way to distinguish that the Medicare telehealth visits… and now again, this slide is outdated. You can see from the bucket, that it’s really those services that could be provided under the Social Security Act provision that pays for telehealth services. Which is distinct from virtual check-in services which are not telehealth.
Those are paid under the Medicare Physician Fee Schedule. Those were not subject to the telehealth statutory limitations, and the same thing for eVisits. You can see on this slide, that the virtual check-ins and the eVisits which have existed prior to any of the telehealth waiver authority, were only allowed to be used for established patients.
We have now seen that expanded under the Interim Final Rule. I’d like to use that slide as a way to just draw the distinction between what virtual check-ins are and eVisits, as distinct from the telehealth services. Those have the drawn defined set of CPT codes, that can be used by different types of practitioners.
I will mention that the Final Rule, has a lot of information at the code level. Very specific to the CPT codes that can be used, very specific to the code descriptions. CMS has provided some very good information via fact sheet, on their new waiver and flexibilities page at their website, which is a helpful resource.
Virtual check-ins and eVisits can now be provided to both new and established patients. Prior to the Interim Final Rule, those services could only be provided to established patients and importantly the consent, because those services require verbal consent. Those can be documented by auxiliary staff.
If we go back to that slide, you can see that the virtual check-ins, where those brief check-ins are over the phone or some other type of electronic device. Whereas an eVisit was communication through an online patient portal.
For purposes of what’s been expanded continuing, clinicians can now provide some remote patient monitoring services for patients with COVID-19 or any other chronic conditions. There is an example there that CMS gives related to monitoring a patient’s oxygen level.
This is important and another big change, providers can now bill for telehealth visits. Again, telehealth, the two-way communication, at the same rate as in-person visits. Prior to this expansion under the Final Rule, telehealth services had to be billed with a place of service code 02 on the CMS-1500.
That is how you identify that with a telehealth service to Medicare. Medicare paid for those services at the facility payment rate, under the Medicare Physician Fee Schedule. Which means there isn’t any practice expense included in that.
That made sense under the original telehealth coverage under the statute, because only patients who were present at an originating site could receive services that would be billable by the distance-site practitioner. The originating site could bill that at originating site facility fee.
Medicare has since recognized that most of these services that are able to be provided now, is likely to occur from a patient in their home. They’ve updated the billing guidance for the distance-site practitioners, such that they can bill for their services from where they would normally be seeing their patient.
Meaning, if a physician is in their office, where they’re going to bill it with an office place of service code, they’re going to include now a 95 modifier to identify to the telehealth service. Then that physician or practitioner will be paid at the non-facility full office payment rate for those services.
Place of service 02, will continue to be paid at the facility payment rate. The rule suggested that for practitioners who don’t want to change the way they do it, they can continue use the 02.
If you’re a physician in their office or even their home, if you’re billing that with an appropriate office place of service, then you’ll be paid at the office visit non-facility payment rate.
Our assumption at this point, is that if you’re a physician providing services in their home as a distance-site practitioner, that it would be billed with an office place of service, because your billing would still be going through your reassigned physician or group practice.
This is a little off topic, but there’re some provider enrollment guidance out there as well, regarding physicians who can provide services in their home during this time period. Our assumption is that those would be billed with an office place of service, if that guidance changed or we get clarification we can update that.
Again, from the prior guidance, we assume no other emergency waiver modifiers are required. There are modifiers required by the Medicare program for services provided via an 1135 waiver. That Medicare had already said that those modifiers would not apply to telehealth services.
I did not see any apparent changes to the originating site requirements within the Interim Final Rule. It’s safe to assume that you can only still bill that originating site facility fee, if you’re one of those qualified originating sites that exist within the statute. I have them listed on the slide.
Then again, the originating site is where the patient is located. There’s been no changes to that portion of the coverage. If the patient is in a skilled nursing facility or in a hospital or in an RHC, and they are there receiving telehealth services from a distance site. That originating site fee can still be billed by that originating site entity.
Method two, critical access hospitals can bill for professional telehealth services on the UB, with their required modifier. Again, we don’t see any indication that the [inaudible 00:43:21] condition code would be required.
What else has changed from the Interim Final Rule? I think this is important, because there’s some discussion in there that can be a little confusing, because of the services that they expanded. The distance-site practitioners must still be qualified providers under the original coverage rules.
Those qualified providers include, as listed on the slide, physicians, certain nonphysician practitioners such as nurse practitioners and physician assistants, and certain other practitioners operating within their scope of practice, such as certified nurse anesthetist, licensed clinical social workers, dieticians, et cetera.
Those are still the only practitioners who can provide telehealth services under Medicare, because they have not made a change to that qualified provider requirement under the statutory provision. This is an important distinction.
Medicare has been adding codes they would cover as telehealth, and including therapy codes. Meaning, outpatient therapy codes, outpatient rehab, physical therapy, occupational therapy, speech language pathology.
Importantly… and this is discussed in the rule, why Medicare went ahead and made the decision to add those codes to the list of telehealth services codes that can be provided. Again, meaning the audio-visual two-way communication.
They have not added physical therapists, occupational therapists or speech language pathologists, to the types of practitioners who can provide those telehealth services. They made that clear in the rule, that they didn’t add these codes back in 2008 when they were asked to, because they were afraid it would cause confusion.
Since these codes are predominantly billed by therapists who are not qualified practitioners for telehealth services, those coasts now exists. It’s qualified as telehealth services that can be billed and paid for as telehealth, but not if they’re provided by PTs, OTs or speech language pathologists.
Those group of practitioners however, can provide and bill for the telephone call CNM, CPT codes. Also, there are some opportunities there for those types of practitioners under eVisits. Really quickly, before I move on to Mike… and again, we focus this part of the presentation on Medicare with all of the changes.
When you look at Medicaid, Medicaid is going to be state specific. The blanket waivers that CMS has issued under 1135 and under the Interim Final Rule, those waivers apply to Medicare requirements and payments.
It’s very important that you need to look at each state, to determine what they have requested or approved via Medicaid waiver. Has there been other guidance issued by the state Medicaid programs? We looked at several states that are issuing guidance related to telemedicine and telehealth services, and they vary from state to state.
It’s important that you look at your particular state’s authority or guidance that they’re giving, related to these types of services. Commercial payers, varied and rapidly evolving. Again, commercial payers have always had more flexibility than Medicare in providing more additional coverage health services.
They generally appear to be following the lead of CMS, albeit in a different pace. It’s very important to check also your commercial payer contracts and guidance, to see what they are allowing for under this emergency period.
We know some are allowing audio only, some already had, and calling those telehealth services versus just those telephone calls. With that, I will move onto Mike.
Thank you, Regan. We’ve talked about licensing and credentialing and reimbursement, and now we’re going to talk a little bit about the technology. As was mentioned at the front end, in each one of our disciplines, we know that we use these terms differently. In the IT space generally, telemedicine is the term we use for that face-to-face component.
Telehealth is everything that doesn’t require that face-to-face component. If you’re coming into this conversation from the IT world, know that in the IT world, telemedicine translates in the reimbursement world to telehealth. Moving into the technology.
As we try to replace that face-to-face video component with technology, there’s really three big buckets of the technology that fill that gap. Kind of from the [inaudible 00:47:36] here. The first bucket is really that fully integrated patient portal. Here, we’re looking at our Epic or Cerner system.
The patient navigates to the patient portal, clicks the link and obtains access to the provider. It’s a really rich environment here for the healthcare provider, for the patient. There is a lot of continuity as you move between the physical office visit and into virtual care.
Stepping out of that patient portal version, we kind of step into kind of the mid level. Here, that video component tends to be provided by a third-party standalone solution. This augments the healthcare provider’s EHR, but it’s a wholly separate system.
You may do some patient encounter functions, by bypassing your consents through your notice of privacy practices. There may be some workflow there. You may collect a patient’s medical history, but you’re still documenting your patient encounter in your EHR. Finally, the [inaudible 00:48:42] version is what has just been opened up by OCR.
It’s the ability to use FaceTime or Skype for business, or Google Hangouts to fill just that video link. As we go through these next few slides, we’re going to be talking about how… depending on what kind of solution you have, that kind of indicates how you can make use of some of the waivers that are out there and where some of the confusion lies on those waivers.
As Chris and Regan mentioned, last night we received some additional waivers. The one that really caught my attention was the adjustments to start. There’re a whole slew of opportunities to rent equipment that are off market value and whatnot. The one that really jumped out to me for the telemedicine solutions, was the non-monetary remuneration waiver.
This allows for an entity to provide to a physician… in the form of nonmonetary compensation, something that exceeds the statutory limits. Then they went on to provide the example of an entity that’s providing free telehealth equipment to the physicians.
For those health systems that are trying to push telemedicine solutions on to their non-employed med staff, this waiver is going to function very similar to what you may have already been familiar with under that EHR donation regs, without the cost share component. You can extend with this waiver, during the emergency some telehealth equipment.
The other piece that came out late yesterday, was the FCC’s COVID-19 Telehealth Program. This program sets aside $200 million, to help healthcare providers acquire and deploy eligible telehealth service equipment. This program is likely going to function a lot like the FCC’s Universal Service Fund Program.
Although the FCC has indicated that this rule will be quick in motion, where the USF program is… that it takes about a year to cycle through. Not a lot of details from the FCC initially on this, well, you’d expect those here in the coming days.
Be aware that if funding for telehealth equipment is a challenge, the FCC’s program is just going to get [inaudible 00:51:06]. With those three kind of levels of telehealth equipment, we’ve got a whole slew of documents that are going to govern how you use that equipment, what your obligations are to the vendor of that equipment or that service.
How that impacts the privacy of the data that’s pulling over it. As you think about licensing a piece of telehealth equipment, whether it’s a cart or if you’re just buying a software service, like American Well or one of those video tools like Zoom, you’re going to have a provider to vendor license agreement.
That agreement is going to… if you have an interface through EHR, it’s going to define that. They’re likely going to be functioning as a business associate, when you have that written agreement with the vendor. In addition, you’re going to have let the provider in to that communication tool.
The provider will also have a notice of privacy practices. The reason that I list all four of these documents, is each one of those class of documents is going to define the privacy rights.
How the vendor can use that data either as a business associate, when they’re functioning as an agent with the provider. Or if it’s coming from the patient’s side, as a licenser of technology, they may also have rights to the patient data as the patient pushes that data into that platform.
That becomes particularly acute, when you’re looking at scenarios where the vendor of the IT solution is also functioning in patient to provider matching. There are technologies out there as you look at telehealth solutions, that allow a patient to log in and enter, “I want to see this kind of provider. I’m in this kind of insurance and I’m in this geographic location.”
That IT platform will do that kind of Uber matching, to help you find an available provider. In many of those cases, the data that’s being pushed in there by the patient is viewed by the platform vendor as the platform vendor’s data, not health information.
As you start to put together an understanding of how that data moves across the platform, and who owns it and what your obligations are in HIPAA, it’s important to understand how each one of those four documents is going to impact that. With that as background, looking at what’s happening now within our emergency.
Here we have the OCR that has issued its waiver that says, “Healthcare providers will not be subject to penalties for violating HIPAA privacy or security rule, breach of notification rules that occur during a good faith provisioned telehealth during the COVID-19 national public health emergency.”
What is really key in that phrase is, it is a exercise of enforcement discretion during the telehealth visit. Some have read this and think that it’s a free pass for all things HIPAA. It’s not. It’s a very limited element of the telehealth visit.
Going back to those three types of platforms, the [inaudible 00:54:54], if you’re in the mid-level space where you are pushing patient data into the platform, it is really important that you understand that once that telehealth visit ends, that platform will continue to hold your patient data.
It’s essential in those cases, to maintain a business associate relationship with the vendor, because you will not have protection under the OCR exercise of discretion likely. That OCR’s enforcement discretion, really is going to apply just to that simple video link when you’re using FaceTime or one of those tools.
There’s been a whole slew of additional HIPAA guidance, and that’s located at our link there, that will walk you through the other pieces. It’s not all relevant on the telemedicine front. In addition to HIPAA, we need to pay attention to part two. Part two, we have two pieces of guidance here.
The first, SAMHSA came out and said that it’s up to the provider to determine in each case whether the medical emergency exists. If the medical emergency exists, then that information can be provided to another healthcare provider. The existence of that medical emergency should be documented in record.
I’m trying to simplify the challenges of part two compliance, the CARES Act directs HHS and SAMHSA to align services across the two organizations and do so in the next 180 days. Now that we’ve talked about HIPAA and SAMHSA, much like in Chris’s presentation, we have to give some considerations to state law.
Although HIPAA came out and indicated that we would not have… or we would have enforcement discretions, the HIPAA preemption of state laws creates some confusion. As the floor is dropped by the federal government, it leaves space for the state’s attorney general to exercise their enforcement authority.
As you look at launching your telemedicine solution, do give some consideration to your particular state law privacy as well as medical privacy laws. Also, the recent announcements. Some of you may be aware of the TCPA or Telephone Consumer Protection Act.
It’s a law that stands out there and bars use of automatic telephone dialing systems and prerecorded voice messages. The FCC came out and said, “Look, during this state of emergency, hospitals and government officials, if the content of call is solely informational and related to the COVID-19 outbreak.
Be a little more secure that you’re comfortable within the penalties of the TCPA and we’ll not enforce against you.” There were a series of changes there. Telemedicine, we’re trying to stand it up quickly. It’s important to understand the limits of the waivers, as well as the funding mechanisms and how it works.
With everything that has changed, a lot is still the same. A telemedicine visit still requires synchronous audio and video. As Regan noted, there are things that fall outside of telehealth that require only audio. Telemedicine visits still require audio and video as has been, today.
Provider must also maintain a record of the encounter. The provider must obtain informed consent from the patient through one means or another. Provider must advise the patient of their financial responsibility. The provider must make the notice of privacy practices available to the patient.
In addition, we have the various state laws that may also creep in there. How do we accomplish that? The easiest route in the virtual encounter is to start with the scheduling process. As you look at standing up to your telemedicine encounter, consider what kind of information is provided through the scheduling process.
Are we taking patients as they need an encounter or is this scheduled in advance? If it’s scheduled in advance, what documentation can we forward to them for that to support the consent for treatment and to support the compliance with HIPAA?
In addition, in that time, if you are using particularly one of the non-secured applications… so FaceTime, Google Hangouts and whatnot, during that scheduling process or at the initiation of the visit, it’s really important that you talk with the patient and explain to them that they are using a non-secure solution for communication.
They understand what that means, and they assume the risk of the use of that insecure platform. We think if you do that and it’s documented in the record, it puts you in a much better place and the patients made informed decisions. Once the visit is initiated, the provider can memorialize in the medical record that they’ve received informed consent.
That they’ve received the notice of privacy practices, as well as any supplement related to the particular platform. Then as you finish up that telemedicine visit, you can take care of any continuing care documentation and routing of that. With that, I’m going to pass the mic back to Chris. He’s going to walk through how we do our game plan.
Great. Thanks, Mike. Before I wrap this up, we’ll move through these next few slides. Kind of coming full circle and just take us a few minutes to do so. Then we’ll stay on to answer a few questions. We’re clearly not going to have time to answer all of the questions we’re seeing, I do want to clarify two points.
One, we’re doing our best to make quick updates and alerts with respect to telemedicine and telehealth. Also, as relates to all other aspects of what we’re seeing during this period. All of this information is on our COVID-19 resource page.
We will take the questions we get, and we will make those part of the alerts in what we publish. You can find that at hallrender.com/coronavirus. In addition to that, like I said, we’ll answer a few questions and certainly you’re welcome to follow up with us directly as needed.
Okay, so in terms of having a game plan, given we have these various buckets, we have reimbursement considerations, professional practice considerations, IT specific components, it’s important to ask a series of questions and we think in a particular order, to get from point A to point B.
Step one really is, where do we want to use telemedicine? The jurisdiction is going to matter. We’ve covered that. What states will we be in, 50 States or 2 states? We need to recognize that. Where will the patients be located amongst those states? Where will our distant providers be, distant-site providers? Where will the patients be?
That’s going to implicate what laws we need to pay attention to. Why do we want to use telemedicine? Three weeks ago, whether or not we could get paid for telemedicine, may have driven that decision almost entirely. That’s not the case anymore. There is value in isolating patients, practitioners, easing the burden on hospitals and EDs and offices.
What are our priorities? We may find, even though the answer over the last few weeks and as of yesterday is increasingly, “Yes, there will be reimbursement,” there may not be reimbursement. We may want to do telemedicine anyway. Know your priorities from the start. That’s also going to dictate what we’re looking at and the value of what we’re finding.
What specific services do we want to provide? We know we’re talking about telemedicine generally, but you can especially now, provide a whole host of different types of services in different settings. The dialogue you have with patients, your workflow, your reimbursement considerations are all going to be driven by those particular services.
Does state law permit these services? Are there specialty-specific requirements? Will these services involve prescriptions of controlled substances, of non-controlled substances? We need to nail that down. Four, who’s going to be providing these services, physicians, APRNs, psychologists, PTs?
As you’ve just heard, maybe a PT can practice therapy per the professional practice standards, but is not going to actually get reimbursement through Medicare. Who is providing the service certainly matters and factors into the equation. Then, is reimbursement available? Medicare, Medicaid, as Regan addressed.
How are we going to provide these services? Mike addressed technology, what technology will we use? Must they include… will they include live audio-video? That relates back to the prescriptions and other factors. Then what’s our workflow? Just to wrap this up, Mike talked about this just a bit. How are we going to schedule these visits?
What sort of information can we share at that time realistically? What consent can we get or consent issues can we vet? How are we going to deal with patient identification and consent issues? Our medical record keeping process. It’s really important to map this workflow out before you get started. Even if it’s a quick one, even if we’re ramping up immediately.
Let’s map out how we’re going to do it today and tomorrow, and then let’s put our game plan together for next week, in how we’re going to do this maybe on a more permanent basis. With that, I’m going to get to a few questions. Then as I said, we will post additional information on our resource page and certainly welcome you to follow up.
One of the questions I see is, “Does the DEA audio-visual requirement… is this relevant to established patients or just new patients?” The answer is all of the above. The rule and the exception relates specifically to new patients, in a way of allowing you to prescribe controlled substances through telemedicine to new patients.
The expectation is, even under the current rule, that you would have the ability to do so if you’ve already seen and have an established relationship with the patient. Again, the caveat being, you need to pay attention to applicable state law, because those requirements may be much more restrictive.
I see a question regarding kind of the length of time all of these exceptions and waivers will remain in place. Almost universally, they will remain in place pending the end of the declared state of emergency. When declared at the federal level, when the emergency period ends, almost all of these waivers and exceptions we’ve talked about will end at that time.
Certain statements regarding discretionary non-exercise of certain other provisions are in place until further notice. The expectation there is, once the period of emergency ends, so too will those exceptions. It’s on the one hand ramping up and addressing telemedicine awake quickly, that it accomplishes what we need in the short term.
In the back of our minds, particularly if we’re going to continue with telemedicine, we have to anticipate that much of this will revert back. Mike, do you have any questions before we adjourn or Regan?
Yeah, I’m sorry. I was just sent a question. The question relates to HOPDs. The question is, if a provider is at the HOPD and the patient is at home, the provider bills place of service 02 and hospital submits what? This would be a situation where if the provider is located in the outpatient department and the patient is at home.
The patient is at home. That’s not a qualified originating site. The only thing that would be billed, would be by that distance-site provider. They’re sitting in a physical hospital outpatient department, so the place of service code would reflect either 19 or 22. It will not reflect the 02, under their revised guidance.
Again, it goes on. Also, if the patient is at HOPD and the physician is at home. Then if the patient is at the HOPD, that is a qualified originating site. The hospital would bill on the UB, the originating site fee, the Q3014. Then the physician would bill on the 1500 as a distance-site practitioner.
They could continue to still use the 02 as the telehealth service code that’s allowed, or the physician more likely would bill with the office place of service, to identify that. Oh, I’m sorry, it would be the 02, because the patient would be at the HOPD. There would be an originating site fee billed by the hospital.
Hey, Chris. I had a question from someone that was looking to understand how to find all the agreements that relate to use of a vendor. It is really important. That’s a great question. Quite often, with a lot of the new upstarts, you’ll find that the vendor gives you a PO with a hyperlink with terms.
Great. Thanks, Mike. Well, great. It looks like we’re over 10 minutes past. We do want to be respectful of everyone’s time, so we’ll end the webinar at this point. Again, we’ll do our best to address many of these topics, and some of these other questions in the alerts that we post. We appreciate you attending. Have a nice day.
Thank you for joining us for this episode. If you would like to learn more about any of the topics you heard in today’s episode, please visit our website at hallrender.com. Please remember that the views expressed in this podcast, are those of the participants only and do not constitute legal advice.