Practical Solutions in Health Care

Hall Render Talks COVID-19: Stark, AKS, CMP

Hall Render Talks COVID-19: Stark, AKS, CMP

Gregg Wallander, Joe Wolfe, and Alyssa James chat about the latest on the Stark Law waivers as well as Anti-Kickback Statute and Civil Monetary Penalties Statute implications on physician and patient relationships in light of COVID-19.

Podcast Participants

Gregg Wallander

Attorney with Hall Render

Joe Wolfe

Attorney with Hall Render

Alyssa James

Attorney with Hall Render

Gregg Wallander: Hello, this is Gregg Wallander with Hall Render and welcome. I’m here today with my colleagues, Joe Wolfe and Alyssa James, and we’re here today to speak about COVID-19.  And we’re also going to talk really about the Stark Anti-Kickback and CMPs, or civil monetary penalties laws and their effect on the physicians and the patients who are experiencing hardships during this time. Joe and Alyssa may also refer to me as Wally, so if you hear that, don’t be alarmed. There’s not a fourth person, it’s just the three of us today. And we’re going to talk about the OIG, CMS response to the issues of Stark and Anti-Kickback and CME in light of COVID-19. We’ve got physicians that are facing hardships due to volume issues in their own practice. We’ve got patients having issues with respect to being quarantined, not being able to get to seek care, and so we want to talk about what the government has done to ease some of the restrictions facing them in this time and this pandemic time right now.

So I’m going to ask Joe to kick it off and talk about some waivers that have been released by CMS, and their impact. Joe?

Joe Wolfe: Thanks, Gregg. To get right into it regarding the waivers, the government is referring to these waivers as the blanket Stark waivers. They were issued last Monday, so March 30th. And they provide us with some flexibility on Stark related to the COVID-19 response. The waivers can be relied on retroactively back to March 1st for Stark, and they can be relied on actually going forward until the termination of the COVID-19 public health emergency when that expires in the future. There is a parallel track for on AKS.  On April 3rd the OIG issued a policy statement saying it would not pursue Anti-Kickback enforcement on arrangements that are covered by these Stark waivers. That kickback waiver is designed only to be forward looking and so like Stark, the waivers will terminate at the end of the health emergency.

So I think practically speaking, if your waivered arrangements started on March 1st you would have Stark cover from day one, but then for kickback you’d have some potential kickback exposure until the OIG statement was issued on April 3rd. So that’s a way to think about how those two waivers concepts sync up for Stark and Anti-Kickback. Probably the most important thing for our listeners to remember is that even though these are called blanket waivers, they’re not just a free pass. I think if you want to rely on them, you need to do some analysis first. Do you have a bona fide COVID-19 purpose to your arrangement? Second, does it fit within one of the Stark waivers we’re going to be talking about today? I think third is whether you have documentation supporting the use of the waivers. And so I think later on in the podcast, Gregg, myself, and Alyssa are going to step through some examples of some of these concepts.

For the first part, the government identified six COVID-19 purposes in the waivers and I’m just going to go through them really quickly, so that they’re there on everyone’s mind. The first is diagnosis for medically necessary treatment of COVID-19 for patients or individuals, whether or not they actually have COVID-19. The second is for securing the services of physicians and healthcare providers in response to the COVID-19 outbreak. Third is ensuring the ability of healthcare providers to address patient and community needs through the COVID-19 outbreak, or expanding the capacity of healthcare providers to address patient and community needs during this outbreak.

Fifth, shifting the diagnosis and care of patients to appropriate alternative settings due to the outbreak and then sixth, a broad category addressing medical practice or business interruption due to the COVID-19 outbreak. And so, those are the six purposes the government has identified, I think as a threshold matter. You should make sure your arrangements fall under one or more of these purposes as part of looking at any arrangement. The second part of the big analysis, I think, is looking to which actual Stark waivers fit your arrangement. The government provided 18 waivers in their waiver document. We’ll be touching on some of those during this podcast.

At a very high level, some areas covered by the waivers includes physician services and that waiver coveres payments to a physician that are above or below fair market value for personally performed professional services. There’s a waiver for space rentals that covers equipment and space leases at rental amounts that are below FMV payments from physicians.  And there’s a more general waiver that covers payments received from a physician for the use of a healthcare organization’s, space, items or services for amounts below fair market value. And if you look at that one, the government gave an example of providing free telehealth equipment to physicians so they could provide care to quarantined patients.

Other examples include some flexibility on the medical staff benefit rules. There’s a waiver allowing hospitals to exceed Stark’s incidental benefits and nonmonetary compensation limits. Other waivers touching on providing credit to physicians and medical groups, physician owned hospitals, hospitals converted from being ASCs, group practices and home health. We’ll hit on some of those in the podcast. The government is also providing some more flexibility on the writing and signature requirements for arrangements that are entered into during the waiver period, and so that otherwise meet an exception.

I think the third part is your documentation. If you have a bona fide COVID-19 purpose and you fit within one of the Stark waivers, then you’re supposed to maintain documentation supporting the use of the waivers that must be made available to the government upon request. And so, and not only do we need to do the analysis, but also create the documentation we’re going to need for later on. That’s a high level overview of how the waivers work, how the purposes are set out and some general parameters, and then how the waivers/exceptions and the documentation fit together. Back to you Wally.

Gregg Wallander: Great. Thank you. Alyssa, you want to touch a little bit on what we’re seeing with health systems and their employment of physicians?

Alyssa James: Sure. Thanks, Wally. And thanks for that overview, Joe. That was great. We’ve received some questions from clients of course, who are still more in the preparation and planning phase that are wanting to evaluate what their options are if existing physicians, volumes and productivity drastically increases as they respond to a potential influx of patients in this pandemic response. More frequently though, I would say right now we’re getting questions from providers who fortunately have not yet had that influx of patients in their facilities and have physicians that are experiencing decreased volumes, which may affect their compensation.

And so many of these providers have been evaluating ways to make these physicians whole or close to it in order to maintain that continuity of care and to retain those physicians if needed for redeployment during the pandemic response, or also just to have for their usual patient care services once this pandemic period ends. One way to do this would be to enter into a written amendment potentially for any arrangement that the facility or provider may have with that physician or physician group, and perhaps look to historical production volumes or wRVU’s as a benchmark instead of utilizing the current metrics, which may not reflect the physician’s availability to provide services if the patients were there.

Gregg Wallander: It’s really interesting with respect to the unprecedented situation that we’re in with respect to hospital physician relationships and health systems really looking forward into the future and saying, we need a stable physician workforce. We need this group of specialties to take care of the community for emergencies, etc. And then overnight practically, some of these volumes dropped, they’re shutting down or needing redeployment. It’s such a unique time and it’s great that CMS and the OIG have recognized the unique situation we are in, and are allowing health systems to enter into arrangements to help out physicians who may be paid on productivity, paid on those kinds of  formulas. It’s just a reasonable thing to do during the situation, for sure.

I’d like to transition a little bit into space and equipment rentals, which is another waiver that Joe, in his good overview mentioned, we’re getting a lot of questions with respect to health systems that lease space to physicians. And in light of the pandemic, the real hardship going on with respect to practices and again, what is a health system to do? Before the waiver, we were advising health system landlords to look at the commercial market, what’s going on with, for example, mall owners, what’s going on in the commercial marketplace. That’s how health systems need to act.

CMS is now allowing that,  during this time you may be able to help out some physicians with below fair market value rent to keep things and stabilize things as much as we can in the healthcare marketplace, which is obviously needed from a public health perspective, as well. So I don’t think that, Alyssa or Joe, do you have any comments or questions that you guys have seen on the lease side?

Joe Wolfe: Yeah, Wally. Joe here. Yeah. I think leases are an area that I know our firm has been getting a lot of questions about, especially as you mentioned in the situations where physicians are working through challenges with back rent, is one that’s come up a lot. The government seems to view this as an area where there is an opportunity for flexibility. If you go into the waiver discussion by the government, they talk about providing free use of space on a campus so physicians can provide the COVID-19 services to patients who come to the hospital but did not need inpatient care.

So they’re viewing this as an opportunity to be creative in your overall COVID-19 response. This can be part of a broader strategy on the patient throughput and how you can ensure the patient population is protected from areas where COVID-19 may be more prevalent, to get safer throughput as well. I think there’s a lot of opportunity to work with rates and to allow flexibility under real estate.

Gregg Wallander: That’s a great point too, Joe. And speaking of throughput, I empathize right now with the healthcare provider marketplace and what they’re going through in terms of the throughput. We’re doing this podcast, each of us from the safety of our own homes. And so some of the transition can be a little awkward because we don’t see each other and we’re doing the best we can, but we’re not facing the hundreds and thousands of patients and redeployment right now. So folks we’re working with are on the front lines. So thank you. Thank you to all of you folks. And the throughput is certainly an issue.

Joe, speaking of physicians, you touched briefly on medical staff and nonmonetary compensation waiver?

Joe Wolfe: Yeah, thanks Wally. I mentioned earlier that one example of a waiver that’s available, allows hospitals to exceed Stark’s incidental benefits and nonmonetary compensation limits. As people, many listening in today, know there’s a cap of $423 for nonmonetary compensation for hospitals and there also is a $36 per instance cap on medical staff incidental benefits. The government here is alowing some more flexibility under these two areas. In the waiver comments, the government talked about the ability to provide meals and comfort items, things like changes of clothing and onsite childcare for physicians that goes above the $36 per instance on the incidental benefits cap for medical staff.

And that’s really linking up with knowing that physicians are going to be working longer hours and being able to provide them more support in that space. The government also talked about allowing for nonmonetary compensation that exceeded that $423 for things like continuing medical education related to COVID-19, supplies and food and groceries, isolation related needs, needs like hotels and meals, childcare and transportation.

And I think this kind of goes back to what we’re saying about the leases. This really plays into an overall COVID-19 strategy as you’re thinking about your staffing model, and what more you can do to help the staffing burden of your physicians. There’s lots of opportunities here to provide that food and support and hotels and meals as part of an overall strategy, especially as you build up your surge plan and need to stretch provider hours and provider staffing. More and more, this is an area that normally we might not have looked to, but here the government’s saying  you can do this kind of planning and provide this kind of support.

Gregg Wallander: Thanks, Joe. Good overview there. Want to switch gears a little bit from hospital physician relationships to physician owned hospitals. Alyssa, you want to chat on that a bit?

Alyssa James: Sure. Happy to. So CMS has stated in their waiver and other guidance, that physician owned hospitals which typically are barred from expansion as of March 23rd, 2010, can on a temporary basis increase their number of beds, procedure rooms and or operating rooms in order to be better equipped to respond to the pandemic and treat that influx of patients that may be anticipated due to their COVID-19 responses. This would be a limited expansion opportunity and would not be able to continue past the public health emergency period, but does allow physician owned hospitals that opportunity to expand to serve the needs of their communities.

Gregg Wallander: Great. And quickly while we try to touch base on here, a lot of different issues. Joe, a little bit on group practices, physician owned group practices.

Joe Wolfe: Yeah, thanks, Wally. Very briefly on group practices, there is an exception, or a waiver that relates to group practices that provides more flexibility around this, what are called the same building and centralized building requirements of the group practice rules. It’s very technical, but it does allow for these services to be provided to a patient in his or her private home, at an assisted living facility or an independent living facility. So greater flexibility, understanding that patients may not be in the same building or centralized building of the practice when the care is provided.

The government, in the waiver discussion, also talked about potentially furnishing MRIs and CTs, CT services in mobile vehicles and vans or trailers in the parking lot of a group practices office, to Medicare beneficiaries who would normally receive those services at a hospital. So again, the government is being flexible here, understanding where care needs to be performed is evolving as part of the COVID-19 response.

Gregg Wallander: Thank you. So finally, let me wrap up here a little bit with respect to the Stark waivers, and then we’ll get into some patient stuff. If you’re faced with a situation regarding physicians that might need, where it might seem necessary to have some assistance, think about the waiver situation. You’ve got to make sure you do it for a proper purpose, as Joe talked about at the beginning of the podcast. It can’t be for an improper purpose like doing it for referrals or something like that. It really needs to be related to COVID-19 and the waiver document released by CMS outlines the proper purposes. That needs to be documented.

If you still can meet an exception, it’s preferable. But if you can’t, that’s when this waiver piece comes into effect. And ultimately, and Joe referenced this also, maintaining proper documentation of your proper purpose, the arrangement and why it was entered into is something that is absolutely necessary because CMS under the waivers said it can ask for or add at any time. So you want to be prepared for that if you’re going to take advantage of this waiver, and I don’t mean take advantage of it in the pejorative sense, but really use it as needed, then make sure you have proper documentation.

So now I want to switch gears here a little bit and talk about the relationships with patients. We’re done talking about relationships with physicians, and now I want to transition to chat a little bit about patients and the implications that are going on in COVID-19 with respect to these fraud and abuse laws. I’ll ask Alyssa to take this on just to start us off.   Alyssa?

Alyssa James: Thanks, Wally. The CMP laws provide for monetary penalties, as Gregg mentioned, against individuals or entities who give something of value to a Medicare or Medicaid beneficiary or that may be likely to influence the beneficiary’s selection of a particular provider or supplier. When evaluating the provision of items or services to individuals, it’s important to remember that incentives that are of nominal value, meaning less than $15 per item and less than $75 annually, are permitted and do not pose CMP concerns.

However, if the provision of free or discounted items or services goes beyond that, those nominal value limits, it doesn’t mean that you have automatically violated the CMP, but rather does present some level of risks that then that must be evaluated based on the specific facts and circumstances at issue. The CMP, similar to the Stark Law and Anti-Kickback statute does have exceptions in place that protects certain types of incentives provided to federal healthcare program beneficiaries.

One of these exceptions is geared toward items or services that are provided to individuals with a demonstrated financial need. Compliance with this exception is a bit more difficult to implement quickly. For example, in response to this COVID-19 pandemic, because it does require that the provider has a policy in place for how the financial need assessment will be made. So for providers who don’t already have that in place, it can take a little bit to kind of get the framework up and running there in order to utilize that exception.

However, another exception which may provide more flexibility and a more rapid ability to respond by providers is the exception for remuneration that promotes access to care, imposes a low risk of harm to patients in federal healthcare programs. We often refer to this as the Access to Care Exception. And this is very broad and gives providers, both within the context of the COVID-19 pandemic, as well as just more generally a pretty good range of flexibility as far as the types of incentives that they can provide to patients.

We’ve seen some examples just in recent conversations with clients of types of incentives that they’re considering offering to patients that I think might be a little bit helpful to walk through. And Joe and Wally, I welcome your thoughts and input as well. One example that we’ve seen recently is the desire of clients to waive certain telemedicine visit fees. With respect to telemedicine specifically, the OIG did issue a policy statement, so not a waiver or an exception but just a policy statement on March 17th, stating that physicians and other practitioners would not be subject to administrative sanctions if they choose to reduce or waive federal healthcare program beneficiary cost sharing obligations for telehealth services during the declared public emergency period.

Again, note that this is limited exclusively to the public health emergency period, much like the Stark waivers that we described earlier in the podcast. So those telehealth services, cost-sharing obligations can be waived but it’s on a limited duration of time. So for any policies or other plans to waive those fees, providers just need to make sure that they have a plan in place to dial that back once the pandemic is over. Another kind of similar aspect but is not covered by the OIG policy statement that we’ve seen is the request from pharmacies to waive delivery fees, obviously with the goal to incentivize patients to stay home and decrease the spread of the virus.

This also promotes access of course to pharmaceuticals of pharmacy patients while limiting exposure to other individuals who may be carrying the virus, and hopefully you can keep those that may have comorbidities or other compromised immune system issues, keep them home and able to get their pharmaceuticals without having to drive to a pharmacy and wait in line around a bunch of other people.

Gregg Wallander: Those are good examples, Alyssa. I think in this case, as you said, it’s different from Stark where CMS has issued broad waivers. And so we’re dealing with this a little bit differently. But the OIG has stated that their goal is to minimize burdens on folks acting in good faith. Certainly we see the news, there are frauds being perpetrated out there with respect to COVID-19 and so there are some bad actors out there. The questions we’re being asked generally by our clients are, what can we do in order to stay within public health guidelines? What can we do to help our patients who are truly in need?

And there’s really not, what we’re seeing, an intent to violate any of these laws, but just to really respond in good faith, not infect other people as little as possible. So I think there’s a lot of good faith going on out there. If you’ve got questions with respect to patients, again, know that you don’t have any waivers per se, but you’ve got to act with common sense. Alyssa, anything? It seems to me that this is more of what makes sense for quality patient care acting within public health guidelines, but then not getting too far afield, it’s always getting that porridge the right temperature.

Alyssa James: I think that’s exactly right. I have one other example, kind of speaking more to the public health implications and considerations. We haven’t been asked this question by clients or seen clients implement this yet, but I think this would be a situation that again would be ripe for that promotes Access to Care Exception, would be if a provider or supplier wanted to equip patients with perhaps nonmedical grade fabric or other types of face masks or other personal protection equipment for more civilians, so to speak, to utilize if they need to attend medical appointments or purchase groceries or things like that. Again, to kind of try to thwart any public health or increased public health issues. That would be an example of something that may otherwise be viewed as an incentive but here, seems pretty low risk in the sense of promoting Access to Care and imposing a low risk of harm.

Gregg Wallander: Great. Thanks. Well, with that, we want to be judicious with your time. We appreciate you listening and we’ll be signing off here in a bit. Thanks again for your time. Again, if you’ve got relationships with physicians, there are some waivers out there. Feel free to check us out on our website, We’ve got some information for you and a special COVID-19 page. You’ve got issues with patients, they’re not waivers per se, but as we’ve said, use some common sense. Thanks and be safe, everybody. Take care.

Expanded Medicare Accelerated Payment Program: How Health Care Entities Can Request Immediate Funds for COVID-19 Response

Expanded Medicare Accelerated Payment Program: How Health Care Entities Can Request Immediate Funds for COVID-19 Response

The Medicare accelerated or advanced payment program (“APP”) was recently expanded to help providers and suppliers access emergency funding needed to support operations during the COVID-19 pandemic. CMS issued a Press Release and Fact Sheet with details about eligibility, funding amounts, processing and how the funds are paid back to CMS.  The expanded APP allows providers and suppliers to immediately request payment advances from their MAC that are interest-free for up to 1 year for hospitals/CAHs and 210 days for other providers and suppliers.   In this podcast, we dive into the details of the program and how entities can request these funds.

Join us for our upcoming information briefing on Wednesday, April 8 at 1:00 PM EDT on the Coronavirus Aid, Relief, and Economic Security Act, signed into law March 27, 2020. Learn more and register here today:

Podcast Participants

Benjamin Fee

Attorney with Hall Render

Joe Krause

Attorney with Hall Render

Benjamin Fee: Hello and welcome to Hall Render’s Practical Solutions in Healthcare podcast featuring analysis and insight on legal issues facing the healthcare industry. My name is Benjamin Fee. I’m an attorney in the Hall Render Denver, Colorado office. Today I’m joined by my colleague Joe Krause in our Milwaukee, Wisconsin office. Both Joe and I are part of a Hall Render work group focused on COVID-19 relief funding for healthcare hospitals and other providers and suppliers.

Benjamin Fee: One aspect of relief funding that organizations are looking at right now is the expanded CMS accelerated payment program. That’s the focus of this podcast and the reason we’ve got Joe here with us. He’s been answering these questions for a number of clients. Thought we would talk through some of the questions that we have been asked to help you listening to this work through that program or in deciding whether you want to seek funds through that program. So Joe, just to start things off, I guess, could you tell us a little bit more about what is the Medicare accelerated or advanced payment program?

Joe Krause: Sure. Ben, the CMS accelerated or advance payment program is actually an existing program that’s been around for years that allows the Medicare program to accelerate or advance Medicare payments in order to provide emergency funding and address cashflow issues if there’s a disruption in claims submission or claims processing issues. It’s historically been used in response to natural disasters to accelerate cash flow to those impacted providers and suppliers in those areas. But last week, as part of the Cares Act that was signed into law by the President, it was significantly expanded, the accelerated payment program as part of the COVID-19 public health emergency to apply to a broader category of providers and suppliers, to increase the amount of payments available and to lengthen the repayment timeframes. CMS also released a fax sheet late on Saturday night with some updated guidance for the accelerated payment program based on those changes.

Benjamin Fee: So I guess first question is, you mentioned that this is part of the Cares Act, huge piece of legislation, a lot of information in there. When we think about the Cares Act, a lot of times we’re thinking about, there’s a $100 billion fund set up to help healthcare providers offset some of their costs, possibly recover some losses. Is this part of that fund or is this a separate thing?

Joe Krause: No, this is a completely separate fund or program. Not at all related or linked to that $100 billion relief that will be going out separately. So this is a completely separate application and processing within the Medicare program.

Benjamin Fee: And you mentioned it’s expansion of an existing program. What types of entities are able to request? I know we’ve gotten this question a lot, some think that maybe it’s limited to hospitals, but what other organizations or healthcare industries could maybe or healthcare entities could maybe take advantage of this?

Joe Krause: Yeah, no. Yeah, that’s, that’s one of the misnomers floating around out there. It’s not just limited to hospitals. It’s hospitals, critical access hospitals, skilled nursing facilities, any type of healthcare entity enrolled in the Medicare programs. That would even include physician groups and the like. Anything that’s enrolled with Medicare can request these funds if they qualify.

Benjamin Fee: What are the criteria for qualifying?

Joe Krause: Yeah, so there’s some criteria related to that you’ve billed Medicare within the past 180 days prior to submitting the request form, the entity submitting it can’t be in bankruptcy or under active medical review or program integrity investigation. And they can’t have any outstanding delinquent overpayments. Essentially the Medicare program wants to make sure that it’s still a going concern. But importantly there’s not a need base threshold for requesting these funds for COVID-19 related expenses as there has been in the past, outside of the pandemic hospitals or other entities would need to show that there’s a need for these funds.

Joe Krause: But that has been done away as part of the Cares Act and CMS guidance that was released last weekend. So entities requesting these funds basically need to check a box on a form saying that there’s a delay in billing and fill on a short description that the funds are being requested due to the COVID-19 pandemic, and that will make it easy for the Mac to understand that this is why those funds are being requested and accelerates the processing of those forms.

Benjamin Fee: So open to a number of different providers and suppliers. The criteria are pretty straight forward, pretty simple. Most providers and suppliers likely will meet those criteria that you’ve just described. You mentioned in the form, I think probably talk a little bit more about that when we talk about the process. Next question I think we get a lot is, how much can organizations request? What’s the amount of payment that someone could get through this accelerated payment program?

Joe Krause: Yeah, so there’s basically three categories of entities in how they calculate how much they can request, so the maximum amount they can request. First hospitals can request up to a hundred percent of Medicare payment based on a six month lookback period. Critical access hospitals, those being small rural hospitals that are paid by Medicare based on their costs, they can actually request up to 125% of their Medicare payment amount. That’s also for a six month lookback period. And then everything else, any other type of provider, supplier and go with Medicare, they they can request up to 100% of their Medicare payments but only for a three month lookback period. So they have a smaller lookback period, which will mean that it’s going to be a smaller amount based on their revenue.

Benjamin Fee: And one thing that came up tied to that is how, I know we get asked quite a bit, how organizations need to calculate that. I think when they hear that it’s based on a lookback period based on the historical Medicare payments under part A and part B is how do they calculate those amounts and include those in their application process? What does that look like? And I know things have been changing because again, this program wasn’t designed for this type of use. It’s been expanded as part of the Cares Act. So can you talk a little bit about, I guess, how organizations calculate those lookback periods or lookback amounts or even if they have to at this point?

Joe Krause: Yeah, so there’s not real detailed guidance on, you know like what the source documentation is for calculating this, whether it’s the cost report or, for hospitals, the PSNR or some other source. So entities are really just using kind of good faith estimates based on some period for them. And one of the key things is that it is just Medicare part A and part B payments that are used to calculate those amounts. It doesn’t include Medicare advantage or part C payments. Those shouldn’t be included.

Joe Krause: We’ve actually learned that CMS has provided Macs with a listing of the maximum amount each provider supplier is able to get through this process based on their own calculations. And some of the Macs have even updated their forms to allow entities to to just check a box saying I want the maximum amount allowed and calculated by CMS to make the process a lot easier for those entities.

Joe Krause: Some of the Macs have not done that so they still ask you to fill in an amount, but you can always include in your cover letter that that you’d like the maximum amount calculated by CMS and that might be one way to get that maximum amount. And Macs are continuing to update their forms, so entities should continue to check those websites to make sure they’re using the most recent and updated form to make the process go more smoothly.

Benjamin Fee: And I think on that point, if an organization has already requested and they used an old form, my understanding is the Macs have said they will process requests using the old forms. If an organization happened to have tried to submit something right away before the Macs actually created COVID-19 specific forms. That’s correct?

Joe Krause: Yep. Yeah, you’re exactly right. Because this has been moving so fast and rolling out at different speeds at different Macs. Some of the Macs had their forms updated right away and some did not. And we understand that they’re not going to hold that against providers just because they were submitted right away though. They’ll still accept those old forms and that shouldn’t hold up anything.

Benjamin Fee: And this is in the name, it’s accelerated payment program. Everything’s moving pretty quickly here. This is actually probably some of the first guidance that we received from HHS related to relief funding coming out very quickly after the Cares Act was signed into law. Along those lines, what’s the timeframe from submission of a request to a Mac to actually receiving funds? What should organizations be expecting?

Joe Krause: Yeah, yeah. You’re exactly right. This was very fast. I mean the Cares Act was signed into law on a Friday afternoon, Friday, early evening. And this guidance came out essentially 24 hours later. So it has been a scramble to understand what’s going on and it’s been a scramble to submit. We understand that these are being processed on a first in, first out basis. CMS initially stated that they wanted Macs to work to review and issue payments within seven calendar days of receiving the request. And that’s probably ambitious, given the number of entities that we know that have submitted. So that might’ve been the initial guideline or timetable. But once more entities are getting these in the pipeline, it probably will slow down. So the sooner your request is submitted, the more likely the Mac will issue payment and get that out to entities that need it for their COVID-19 response.

Benjamin Fee: Yeah. And we’re recording this a few days after that guidance came out, so it actually hasn’t been seven days since the guidance came out, so, we don’t actually know if the Macs have started distributing funds yet or if they’ll be able to meet that seven day timeframe. But certainly your point to, it’s a fairly simple form available to a lot of different providers and suppliers. Get it in and the sooner you get it in, the more likely you’ll get paid in a timeframe more consistent with that seven day, maybe a little bit longer, consistent with the intent of the program of getting some money to organizations right away as health and human services works through how they’re going to distribute other funds available through the Cares Act or other relief funds that may be available through other avenues.

Benjamin Fee: One, we talk about this as I think there’s two things I want to ask you about. It’s an accelerated payment program, so can you talk about the repayment obligations? This is not a grant or a forgivable loan. This is accelerated payments, advanced payments, and there are repayment obligations tied to that. Can you tell us a little bit more about when those repayment obligations begin and how those repayments occur?

Joe Krause: Sure. Yeah, so first I’ll start for hospitals and critical access hospitals because they have slightly different rules than all other entities. They get a little bit longer period to pay it back. But essentially what happens is, once an entity gets the funds, the accelerated repayment funds, they get those on day one and nothing happens for 120 days. During that timeframe, they can use the funds as part of their COVID-19 response and go on with business as usual. Starting on day 121 CMS starts to withhold from payments that the hospital would otherwise be receiving amounts towards that APP balance.

Joe Krause: Once the timeframe gets to one year for hospitals and critical access hospitals, the Mac will basically do a manual check to see if there’s anything still outstanding. At that point, if there is still anything outstanding, they’ll send a demand letter and it’ll say the remaining funds need to be repaid within 30 days. If they’re not being repaid within 30 days, you’re going to start accruing interest at X rate. And we understand the rate right now is 10.25% or it was on March 31st. I’m not sure if they’ve released the new rates for April yet.

Joe Krause: So at that point hospitals either need to repay it, the remaining balance, or they can request what’s called an extended repayment schedule that would allow them to repay the remaining amount over and up to a 60 month period if they meet certain hardship requirements. So that’s hospitals and critical access hospitals. For everybody else, they have the same 120 day period where they don’t owe anything back. And on day 121 CMS or the Mac starts to withhold payments, dollar for dollar against that APP balance. And then once we get to 210 days, that’s when the Mac will do a manual check for those entities to see if there’s anything still outstanding and they would issue the demand letter at that point, triggering a 30 day repayment requirement or interest starts. Or they can request an extended repayment schedule at that point as well.

Benjamin Fee: Can you just confirm when the timeframes that you mentioned there, the 120 days, the one year for hospitals in terms of a full repayment being due, those begin at the date of receipt of the initial requested funds? Correct?

Joe Krause: Yep. Yeah, so that’s an important point. So the hospital would be submitting their form at some point. The clock doesn’t start until those funds actually make their way to the entity, to the healthcare entity. So we’re not counting from when you submit the application, it’s when the funds are transferred and made available to you.

Benjamin Fee: And you mentioned things are changing rapidly. I think everyone is aware of that, as we work through all of this, and you mentioned the over 10% interest in the event that there is an outstanding balance after the other repayment time period runs out. I guess that probably would strike me or does strike me as a pretty high percentage, given the market right now. Do we have any sense of whether that could change or there would be flexibilities in that or is that just something that we should keep an eye on and hope for?

Joe Krause: It’s something that we should keep an eye on, but we have been told by some Macs that those are, the what I outlined before with the timing and the interest, that’s kind of the process for that as it’s been set up previously and how they would normally take an entity through this APP program from when they get the money to when they have to start repaying it. But we have been told by some Macs that further guidance is expected and it’s definitely possible that we’ll get some guidance that’s different from past repayment obligations that allow hospitals maybe longer time to repay or different interest rates or something or ability to offset the hundred billion dollar fund against these amounts. That’s also something that’s been floated around out there in the industry.

Benjamin Fee: I think that’s an important point too, to think about this in the context of the other relief funding that is out there that will be made available, but that we just don’t know yet how, which is this is a way to get funding as organizations, as the government decides, other avenues, other opportunities, how they’re going to distribute funds through the Cares Act, whether there’s going to be FEMA funding, small business association loan funding for some organizations.

Benjamin Fee: This is cash you can get fairly quickly. There are repayment obligations, but potentially you could take funds that you ultimately receive through other sources and use those to repay amounts that have come through this accelerated payment program. Joe, I assume if an organization wanted to, they could repay earlier than the time frames we laid out and there wouldn’t be any sort of repayment penalty given how this program is structured?

Joe Krause: Yeah, yeah. There’s nothing that would prohibit or restrict an entity from repaying this quicker if they got to the 120 days or the year mark, whatever it is and they have other funds available through those programs and they want to pay off their APP balance, there’s nothing that would restrict them from doing that at that point.

Benjamin Fee: Well, thank you. I guess last point on that is just we worked with a number of organizations. Joe, I know you have, I have as well, and there’s not a lot of downside to requesting funds through the CMS accelerated payment program. If an organization thinks they’re potentially eligible, certainly we recommend considering it. And if there’s any questions, certainly feel free to contact one of us or your regular Hall Render attorney. We thank you for joining us today.

Benjamin Fee: Wanted to mention, we do have an information briefing webinar coming up on April 8th at 1:00 PM Eastern that’s going to discuss not only this program but also other relief funding availability. Probably have an update if you happen to be listening to this podcast before that date. If you are listening to this podcast after that date, that listening session is available on our website at So please, if you’re looking for additional information on relief funding and what is out there, check that out as a resource.

Benjamin Fee: Final reminder, the views expressed in this podcast are for those of the participants only and do not constitute legal advice.

Navigating the Use of Telemedicine During this Emergency Period

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.

Podcast Participants

Chris Eades

Attorney with Hall Render

Regan Tankersley

Attorney with Hall Render

Mike Batt

Attorney with Hall Render

Chris Eades: 

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 We have other teammates as part of our telemedicine team. Their information is also on our website,

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.

Chris Eades:

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.

Regan Tankersley:

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.

Mike Batt:

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.

Mike Batt:

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.

At the other patient end, you’re going to have the patient end user license terms or terms of use. Then on each side of that communication, you’re going to have privacy policies. The vendor will have a privacy policy, and the provider likely on their website will have a privacy policy

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.

Chris Eades:

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 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?

Regan Tankersley:

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.

Mike Batt:

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.

It is really important to kind of go through that hyperlink, as well as look at their privacy policy and their terms of use. Generally in their privacy policy, you’ll see some indication that they want to do marketing, based on the data that they collect. That’s always a red flag for healthcare providers.

Chris Eades:

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 Please remember that the views expressed in this podcast, are those of the participants only and do not constitute legal advice.