Practical Solutions in Health Care

A Look at the Evolution of Health Care Delivery

A Look at the Evolution of Health Care Delivery

Join Hall Render attorney Brian Betner, along with Jacob Bregman of Everside Health, Meg Duffy of DispatchHealth and Chad Knight of Encompass Health – Home Health & Hospice, for a discussion exploring how health care delivery is evolving with an emphasis on patient access, meeting patients where care is needed and the importance of integrated post-acute care. From the perspective of industry innovators, the panel will discuss the opportunities and challenges in navigating health care status quo and their thoughts what tomorrow holds.

Podcast Participants

Brian Betner

Attorney, Hall Render

Jacob Bregman

Everside Health

Meg Duffy


Chad Knight

Encompass Health

Brian Betner: Good afternoon everybody. Thank you so much for investing your time with us on what hopefully is a beautiful afternoon to you somewhere. My name is Brian Betner again, I’m an attorney with Hall Render.

Today we have an impressive panel on the whole notion and concept of the evolution of healthcare delivery. We’ll be talking about trends and opportunities and challenges in navigating the healthcare status quo, from the perspective of a few organizations making a splash in their respective areas, and hopefully touch some expectations and predictions for the future.

But before we dive into the panel introductions, I want to provide an overview for our panel of who we have participating today, and there’s a number of us across the country, whether as a participant, you’re a hospital or health system representative or multi-specialty group practice or home health or hospice, we have a broad array of individuals on the phone or on Zoom with us now and I’m sure you also have interesting insight experiences that may guide questions during the next hour or just short of that. So please use the Q&A feature to pose those as we proceed here over the next, like I said about an hour.

Our goal today is that whatever your role is in the industry, you’ll come away with something, a new idea, a fresh perspective, a new strategy that you can apply to your organization or your role as you navigate this evolving healthcare landscape. So to give you an idea of what to expect, we’re going to take a few minutes for each of the panels to briefly introduce themselves, tell a little bit about their background and the industry and their respective organizations.

I will then kick off our conversation with a very brief overview of what we mean by the evolution of healthcare, and then ask some questions that draw out some of the high-level themes that we hope to be talking about here over the next hour and gets you thinking.

And then toward the tail end of our hour today, we’ll open up the Q&A to give you an opportunity to ask specific questions that you’ve been thinking about or to help you navigate some of the issues that have been challenging for you. So with that, again, we’re grateful for your time today, unless you have any initial questions, let’s get started with a few introductions. And so now I’m going to turn to Meg Duffy with DispatchHealth. Meg, thank you for being with us today.

Meg Duffy:    Thank you, Brian. I’m happy to be here. I’m going to just as part of my intro cover three things. Who am I? What do I do? And what is DispatchHealth? So my name is Meg Duffy, I’m the VP of Strategy at DispatchHealth. I joined Dispatch in August of 2020 in the midst of the pandemic. And prior to joining DispatchHealth, I spent about a decade on the health system side working for various health systems in the industry, always in a strategy role.

And that brings me to my second thing. What is strategy? What do I do? Because often I get that question, what is strategy? And I would describe it as, the way that a mentor that was very important to me did years ago, strategy is watching what’s happening on the fringes of the world that we live in and how it’s going to impact how we deliver care in the future. So it’s exactly I’m aligned with, I believe the topic here, the evolution of health care delivery.

And then what does Dispatch do? DispatchHealth really as a tech-enabled provider, a company that partners with health systems and payer groups across the country, to deliver medical care in the home to hopefully avoid unnecessary urgent care emergency room visits and hospital admissions. So in a nutshell, that’s me, what I do in strategy and DispatchHealth.

Brian Betner:  Thank you so much, Meg, I really appreciate it. Chad, thanks for being with us today, tell us about yourself.

Chad Knight: Thanks Brian. And legal is not as interesting of an introduction as Meg’s in Strategy, but I’ll try and share a little bit about the company too. My name’s Chad and I’m general counsel, Encompass health, Home Health and Hospice. Our Home Health side is the nation’s fourth-largest provider of skilled Home Health services by revenue.

Our hospice side is the eighth largest provider, we operate in 31 States with the concentration in the Southern half of the US. And then just Home Health patients are frequently referred to us following a stay in acute care or inpatient, rehab hospital or other facility. And we also have many patients referred from primary care settings and specialty physicians without a hospital stay.

Our patients are typically older adults with three or more chronic conditions, significant functional limitations, and may require a number of medications. We also provide Hospice services to terminally ill patients. And look forward to sharing more through this panel. Thanks.

Brian Betner:  Oh, that’s great, that’s great. Thanks so much, Chad. Jacob, so it looks like we’re interrupting your mountain retreat, so sorry for that, we really appreciate you giving us time here this Thursday afternoon.

Jacob Bregman: Well, thanks Brian. Good afternoon everyone, and thank you for having me. My name is Jacob Bregman and my role is the market president for the West side of the United States for Everside Health. So in that role, I’m responsible for operations and client relationships operating about 50 health centers. And before working at Everside health, which I joined in 2019.

Similar to Meg, I have some background working in health systems, so I worked at university of Colorado hospital here in Denver, prior to that I worked at DaVita dialysis company. And started off in healthcare at the advisory board company in Washington, DC.

If you’re wondering what is Everside Health? So Everside Health is the country’s second-largest provider of direct primary care. And Everside Health has a new name and a new brand for us just within the past few weeks. Those on the call may know us as Paladina Health, Activate Healthcare or Healthstat. Those are the three legacy companies that merged together to become Everside Health.

And what we do in a nutshell is we partner with employers, we partner with unions and we develop onsite, near-site and virtual primary care services. So the typical challenge that we address with our clients is groups, particularly employers are seeing healthcare costs go up and up and up, but they’re not seeing necessarily the quality of the health that their employees and their dependents are receiving going up.

So our model involves really giving primary care providers a lot more time to spend with their patients, longer appointment time, smaller panel sizes. We hire providers who work at the top of their scope to fulfill potentially up to 90% of a patient’s healthcare needs inside primary care. And then we try to make the incentives aligned to ensure that we’re providing high quality and at the same time, low-cost primary care. So that’s Everside in a nutshell, and again, thanks for having me.

Brian Betner:  That was great, Jacob, thanks so much. So you touched on a number of issues, hopefully, we’ll explore here today. So let me… As I commented on a few minutes ago, before we dive into the panelist perspectives and experiences, I want to give a very brief backdrop. So we talk about the evolution of healthcare. We’ve had a bit of a level set with everybody in terms of what we mean.

So when discussing the notion of an evolving healthcare landscape, in terms of how and where care is being delivered, it’s important to have a background that speaks to what’s driving the evolution. And so here’s how I’ll tee that up for us, just so we’re coming from the same point.

We’ve had a perfect storm of sorts for the last 20 years or so, and if you want to go back to 1999 and 2001, the whole notion driving quality, that really brought at least when you’re a healthcare provider and you’re involved in policy and quality and how we deliver. The Institute of medicine [inaudible] crossing the quality chasm release Seminole papers, that started a dialogue certainly within the federal healthcare system, in terms of the return on investment that American healthcare gets in a prevalence of patient safety events, et cetera.

And then when you compound that with social security trust fund insolvency issues, CMS’s hospital quality initiatives, the joint commissions national patient safety goals, dramatic advancements in HIT. I mean, if you go to any healthcare provider from a line item standpoint, that health information, whether it be the chief technology officer or whatever the title is, they have an insatiable budget, because there’s all sorts of toys out there, that dramatic advancement in HIT are really driving things.

The advent of the triple aim, certainly increased fraud abuse compliance enforcement with additional funding, which creates scrutiny and opportunities to avoid certainly the whole notion of corporate negligence and negligent credentialing takes a very significant role. A host of market trends, patients have a greater expectation today in their experiences and their quality and their outcomes. And certainly quick-moving commercial payers.

That entire perfect storm that’s been happening the past 15 plus years feeds into what’s happening today, there’s a longstanding Axiom that continues I believe to be true, which is that reimbursement policy drives delivery system change. And we have seen that through the affordable care act, now just a hair over 11 years, two days ago, it was 11 years old, I guess.

But CMS has made its goal very clear and shifting that the largest payer in the country in terms of lives touched in relationships with healthcare providers, its goal of shifting Medicare and Medicaid away from fee for service, to being more oriented toward value-based and pay for performance, quality control, cost control, driving integration among providers, et cetera.

But this is really challenging when you consider that so much of the foundation of our healthcare infrastructure is built on or has been built on not inappropriately, but is built on acute care, and inpatient focused mindset, patients coming to providers, certainly a hospital anchored design, a hospital-sponsored and funded design, if you will. And these and other factors have contributed to a very meaningful shift in where and how care is provided.

Generally, I would say an emphasis on primary care, pre acute and post-acute, care of individuals and certainly end of life issues among other matters that are starting to become prevalent because of the costs involved in care, there’s a data point, an overwhelming percentage of Medicare’s budget is attributed to the last 180 days of life.

And we’re starting to look at that as a society and a country, and as a result of all these pressures, healthcare industry has been making efforts to improve its efficiency, access, quality, affordability of services, and lots of changes have occurred, and especially the past few years as a result of these efforts, for example, I mean, we see a tremendous, measurable, I should say, decrease in hospital admissions as more people are served throughout the outpatient care continuum, we’ll call it.

And so, there is a confluence of events and activities, and we’ve got a lot of innovators around the country, it’s really amazing. Anything is impossible in healthcare, but for some hurdles and challenges, of course, that hopefully we’ll explore today. So with this as a backdrop, we’re going to turn to our panel, and Meg I’m not picking on you, we started introductions with you.

But I want to start with you here. And here’s what I want to set aside, so that everybody understands this. The whole notion of COVID elephant in the room, this is not so much a COVID panel discussion, but we can’t avoid it. It is probably the prevailing or the dominant experience for many of us, certainly over the past 12 plus months. But the past several years have involved some common denominators for all providers in terms of them shifting the patient experience and emphasizing quality, addressing population of health issues and certainly efficiency and cost control.

So with those dominant factors, Meg I want to start with you, because in some respects, DispatchHealth it’s existence, it has to do with many of these things. So, can you describe for us Dispatch’s mindset and how it shows it has started to address these trends?

Meg Duffy: Yeah, absolutely. So, I wish I could speak firsthand to being one of the founders of Dispatch, but our co-founders started Dispatch in 2013 really after decades of working as clinicians, our CEO Dr. Mark Prather is emergency medicine Physician and the stories he tells about seeing people come into the emergency department and thinking there’s got to be a better way, I don’t know that they’re going to get their meds, I don’t know that they’ll follow up with their cardiologist.

You know what? I don’t have any context of their lives, they come in, we treat them and they’re out and he started to think there’s just got to be a better way. So he started in Denver where we’re headquartered, piloting really with EMS agencies to re-imagine the 911 response. And using a proprietary risk stratification model and some logistics engine we have within our platform. We’ve been able to prove that you can safely risk-stratify patients, determine who’s appropriate to be seen in the home and effectively take those clinical capabilities to the home.

 We have a set of providers, an emergency-trained physician assistant, or a nurse practitioner along with a medical technician that goes in the home with the clinical capabilities to be able to treat people where they are and meet them where they are and avoid unnecessary trips into the emergency department. So saving the unnecessary costs, not just in the emergency department, but also for the EMS agencies and transporting those patients.

So we quickly realized, okay, not only are we able to accomplish this at a lower cost, but over the years now, as we’ve scaled the model across the country, here to date, our NPS score is still 96, which is just phenomenal, you don’t see that very often in healthcare delivery, that high of a patient experience for our net promoter score has consistently maintained that high.

Our outcomes we believe to be superior, particularly as we branch into areas like hospital at home where our readmission rates are less than 4%, our unexpected mortality is zero. And so we’re able to say, gosh, we’ve taken care back to the home, we’ve had to do some testing,  started small, but as we scale, we continue to see lower costs, better experience and better outcomes. And our providers love it. They have more autonomy, they are able to experience a better relationship with the patients, they see their pets and their family members, and they get that context of the social determinants of health that you may not get in other care settings.

So that’s sort of, you’re exactly right, we were born out of this mentality of, there’s got to be a better way to achieve the triple or quadruple aim. And I’d say, five-plus years later operating under the Dispatch health model, we’ve been able to prove that it’s possible.

Brian Betner:  So there’s a lot to unpack there. I like that. Jacob, let’s go to you. I want to understand the direct primary care model that Everside is largely built on today in terms of its priorities and emphasis. How does… Dispatch has found a sweet spot in terms of where it’s seen a void. What is Everside’s view in terms of how direct primary care plays into that?

Jacob Bregman: Yeah, absolutely. I love what Meg said and it resonates with our philosophy of, there’s got to be a better way. And I think the niche that we fit into is people who sponsor health plans. So typically employers, Taft-Hartley union groups, some benefits trust funds. As I mentioned before, healthcare is not necessarily going up, even as costs go through the roof.

And so our approach is basically to proactively and comprehensively manage primary care. And we do that through a mix of brick-and-mortar primary care clinics, and as I’m sure we could all speak to the growth of virtual care over the past year.

So a couple of things that I think are highlights of the model, we leveraged technology a lot to risk-stratify patients. I’ll give you an example, I know Brian, you don’t want to go to COVID quite yet, but it’s pertinent in this case. A year ago when nobody really knew what was happening with the Corona Virus, we were able to leverage our analytics and stratify our patients, basically depending on their risk factors, if they were to contract the virus, the higher risk folks got a personal call from their primary care physician, the next step down, they might’ve received a call from an advanced practice provider or from medical assistant or a web message, basically letting them know, Hey, we’re here for you and getting those patients, getting their medications refill, getting them care as they need it. Sometimes just reassuring people.

So not dissimilar from DispatchHealth, a big part of our model is keeping patients away from higher-cost locations for care, such as urgent care or the emergency department, and when possible managing healthcare within primary care. There are things we can do related to dermatology is a great example, women’s health is another example, wherewith the well-trained family medicine physician, our advanced practice provider, we can take care of those needs for the patient within our model at no cost to the patient. And that voids a specialty visit that enhances coordination. And because we’re not worried about following up on referrals and records and things like that and convenience and time savings for the member.

Brian Betner:  Does the current reimbursement scheme, the major payers, governmental and commercial, do they facilitate that? I mean, I often use an expression when I talk to physicians today that a lot in advanced practice professionals a lot is required of them today, and there’s no CPT code for it, right? They’re being asked to do things in a management way that may not fully align with the reimbursement system. Is the model you just described? Does it fit well or a lot of these things don’t value adds.

Jacob Bregman: Yeah, it’s a good question. So the broad model that we fit under is direct primary care, and the direct word basically references that we view our relationship as between the provider and the patient, whereas in traditional fee for service medicine there’s the insurance carrier if it’s in there. So for the most part, we don’t bill at all. There are certain instances where the IRS requires us to bill under high deductible health plans and things like that, but for the most part, members might… You might compare your access to Everside Health is like a gym membership. We collect a flat fee or a monthly fee, and then members come in and use our care as much, or as little as they need it doesn’t matter, there’s no impact on reimbursement if it’s virtual, if it’s in person, if it’s by a text message.

So that’s one of the really nice things, and I think the providers who work in our model really enjoy that, they’re not spending time billing and coding and up charging, they’re just focused on providing the right care to the patient.

Brian Betner:  So, Chad, Jacob just described a pretty flat relationship to payers, a little more streamlined, but that’s not your experience, right?

Chad Knight:  Right. And I mean, Home Health for a long time is very much fee for service, we’re seeing, I think within the past seven years, and it’s just growing and growing is new payment models. And so things that shift more to the value-based care like we talked about earlier, right now Encompass we’re collaborating with about 140 within different payment models, so these are NXGEN, ACOs, MSSP and direct contracting is one of the newer ones coming from CMS.

So, as that landscape changes our ability to fit in and provide more value-based cares is growing too, so I think that’s just going to keep increasing as we go into the future.

Brian Betner:  Is that having to maintain competency over 140 or so different payment models, how does that… Explain to me how that works? That seems a bit minomic.

Chad Knight:  Yeah, there’s probably only a dozen or so different payment models, but I think MSSP has been around and NXGEN have been around longer, so those are pretty standard now, but as we’re working on direct contracting models, that’s new and everyone’s getting their templates together and things, so that takes more time, I think that’ll get easier as time goes on.

But even just working with the 140 different, whether it’s physician groups or hospitals or ACOs, each of them depending on the region has different things that’s important to them and drafting the contract in a way that aligns best in the patient’s interest really is I think the fun part about the new models. So that’s what we’re working through and that takes time with each relationship.

Brian Betner:  Meg, Encompass can align through recognize participating provider arrangements with commercial payers and Medicaid, Medicare, et cetera. How does that work for Dispatch?

Chad Knight:  Yeah, I mean, we are contracted with 300 plus managed care contracts across the country, we have 150 plus covered lives that have access to DispatchHealth through those contracts, and then of course we see Medicare and Medicaid, and we’re looking at how to participate with direct contracting as well. Most of our interest comes from health system partners or provider groups that are taking risk that we’re able to demonstrate the value on their different populations, not to say we’re taking the risk directly ourselves, but we’re able to enter into an arrangement with those health systems or provider groups that are at risk and partner with them to make sure that we’re, again, risk stratifying, identifying the most appropriate patients that we can be helping offset unnecessary costs.

And then one of our main things always is to tuck the patient back into whomever is their primary care or whoever is their network to make sure that right now we don’t have necessarily that longitudinal relationship with the patient, but we want to make sure that they’re taken care of and tucked right back in. So regardless of the payer, that’s always top of mind as well, but I would say that the most attention from interest from the industry is coming from those that are already taking risks today.

So, what each of you has described assumes that the whole notion of helping a patient, engaging the patient assumes that their patients understand your models, they understand how to take advantage of it, they’re engaged enough to be, I mean, there’s a competency there, proficiency or knowledge, how does it even work? I mean, how does Dispatch or Everside or Encompass meet the patient so that they’re making an informed decision? Help me understand how that works, Jacob?

Jacob Bregman: Yeah, I think that’s a big part of what we work on every day, I think there’s a little bit of feedback we get sometimes when people first hear about Everside Health thinking, one of two things, one is this too good to be true? What am I missing? The second being, huh, I am not sure how I feel about my employer, my job being connected to my personal health care.

So how do we get through those things? I think it’s really a combination of education, of transparent communication. I mean, on the employer and the privacy side, we can talk to patients about HIPAA and privacy practices around the provider, patient relationship. Quite honestly, a lot of the learning just comes by word of mouth, I’m fond of sharing my own personal story. When I first got access, when I worked at DaVita, I had access to Everside Health as a patient, and I was one of those folks who said, I have a primary care provider I’m happy with, I don’t want my work in my personal medical life.

And then what happened is I got sick and my primary care provider, I called them and they said, yeah, we can get you in the next week. And my thought was, well, I’m sick now. And then I remembered through my workplace, I had access to Everside Health, I gave them a call, they said, can you come in in an hour? And I said, yeah. And they took that opportunity not just to treat what I was facing that day, but they said, Hey, if you’d like to come back in and establish care with us, we’d be happy to take care of you. So, that’s a lot of what we do patient by patient, just explaining what we do and how we’re in their corner. And patients once they come in once or twice, they typically keep coming.

Brian Betner:  All right, that’s rational, that makes total sense. Meg how does it work from Dispatch’s perspective?

Meg Duffy: Not too dissimilar, where once they’ve experienced us they’re ready to come back, but I will say it’s similar, it’s too good to be true, wait a minute, you’ll come to me within two hours or whatever it may be. So I would say, a couple of things that we do on our onboarding process, we try to make sure that we have appropriate reading levels and things like that of the language that we’re using to describe our services and do the risk stratification. So that way it’s translating well to the mass majority of callers, we have web-based, mobile-based ways that they can request care, so hopefully we’re also hitting people whatever is the methodology to request care that’s best for them.

And then I think we have… I don’t know most of our patients are new patients, we have a lot of return repeat patients, and we also have a lot of caregivers that are calling in on behalf of, so it’s me for my mother, or it’s, I’m a caretaker for somebody. And so often they’re the ones that are recognizing, gosh, I don’t have the time or the foresight or whatever to be able to plan accordingly a half a day or a full day or whatever it may take to get somebody into an urgent care appointment, especially if they’re homebound or have transportation issues. And so, a lot of times it’s the caregivers and we also have referrals directly from our providers and payers that we partner with.

So a lot of times they’re helping with managing up the Dispatch option as a choice for their members, and then sometimes even making the direct referral to us, should it be something where they can’t handle the need appropriately, or it’d be better suited for DispatchHealth to come in and treat that patient where they are.

So a lot of different ways that hopefully we’re trying to get the message out, but once similar, I experienced DispatchHealth firsthand and I mean, and definitely, that was long before I worked for DispatchHealth, like you were saying, Jacob, and I’m a believer from that firsthand experience. So it just takes one time.

Brian Betner:  So there’s an unavoidable theme in everything each of you has said. And when I think about access, when I think about how you generate your business and a referral mindset, a lot of it has to do with convenience and experience, staffing is everything for that, right? You want to get a dermatology appointment, you’re looking at March of 2024. Providers and availability of individuals.

So I don’t understand, help me understand how you accomplish access, convenience, that experience you just described, particularly given your scale and size. Chad, the scale and size of Encompass, help me understand from a staffing standpoint, how are you able to staff it? How does it work? How do you have the providers who are available at the right level, particularly, it sounds like we might be, the whole top of the license notion that I think Meg had mentioned, how does that work?

Chad Knight:  It’s been tough especially over the past year. The biggest thing that Encompass does I think is, we’re big on best place to work, and you’ll see that just throughout the country where we have offices. So I think it’s either corporate culture or that extra feel kind of the family feel that our offices have, that makes us different from other providers, and working another provider but staffing is difficult for all health care providers across the country.

Brian Betner: Are we talking largely APNs, PAs? What’s the license mix that dominates your rosters?

Chad Knight: Yeah. Nurses and physical therapists in Home Health.

Brian Betner: Okay. Jacob, how about you?

Jacob Bregman: Yeah, for us it’s a mixture of family medicine physicians, and then family medicine and trained nurse practitioners and physician assistants. And so we’ll work with each client when we’re establishing a new health center to discuss the right staffing mix for that particular location and patient population.

We find it works really well to pair the two together, so to have a health center staff by a physician complemented by an advanced practice provider gives the patient some choice, it allows some focus as we’ve been saying for each provider to work at the top of his or her license.

And I’ll echo what Chad said, especially as we talk about these innovative models, one of the challenges we face is recruiting providers who get it and they want to practice this way. And I think in our world for a family medicine physician who’s coming from the fee for service world, where they’re seeing 20 or 30 patients a day generally generating a lot of referrals and a lot of billing codes, it’s different.

A lot of our providers tell us this is the way I want to practice medicine, but on the front end, back to this too good to be true, we sometimes struggle with that. And the other part of our model is we want our patients to be able to access us, so we ask our providers to be on call 24/7, because we’d rather get a call on a weekend or in the evening than have one of our members go to the emergency department for something that we could have helped avoid.

Brian Betner:  So that’s interesting because there are jokes [inaudible] that physicians will choose, certain specialties at a residency, because they don’t involve call, right? And now you’re telling me that your FPs and your primary care advanced practice nurses and PAs they take 24/7 call.

Jacob Bregman: They do, yeah. Meg, how is staffing for Dispatch? You’re largely because of the … it’s much more autonomous, right?

Meg Duffy: So, actually, so I’m going to try to kill two birds with one stone here. So there was a question in the chat from Lisa Brandt, and I asked a little bit about our focus. We go to the home, do we use telemedicine? And so I guess to tie that into how we staff, we’re constantly focused on how we can continue to right-size care, we’ve limited resources, there’s not necessarily parody with regard to reimbursement across all different payers, and so what we’re trying to I think do is look at our risk stratification model and make sure that we’re optimizing it all the time.

And so we started off with the business model of sending out an emergency trained nurse practitioner and physician assistant paired with a medical technician into the home. And what we’ve found is typically our patients are chronically ill, elderly, and that’s appropriate, but there’s some times that it’s a snotty nose or a sore throat or whatever, and we want to right-size care, we don’t necessarily need to send out that full team.

So instead we’ve developed a model that we call tele presentation which is basically an enhanced or assisted virtual visit where we send out the medic, they’ve got the kit, the equipment, they’ve got a moderately complex CLIA certified lab that they can run point of care testing, but they’ve got the virtual APP on the other end. So that way we’re continuously right-sizing care. And so depending on the service that we’re providing, the staffing complement might be a little bit different. So it could be anywhere from a med tech tele presenting, full tele medicine. We could go all the way then with the hospital level of care in the home where you’ve got RN coming in and doing visits.

So, anywhere from that episodic intervention to now we do post-acute visits in the home. So after they’ve been discharged from a hospital at one of our partner systems, we’ll send in a nurse or a tech to do some follow-up, and make sure that within three days there are some services wrapped around them, we’re avoiding a readmission, all the way through a seven day episode, a 14 day episode, a 30 day episode, really just based on what the patient needs. So the staffing complement is all based on that sort of right-sizing care and right-sizing the resources needed to treat them appropriately.

Brian Betner:  I was going to hold this question for diving into COVID, Jacob, I promise we’re going to get there. Diving into COVID, but this relates to all this, Meg, because you just mentioned the role that mobile technology and telemedicine plays. Is telemedicine playing, COVID aside or COVID, let’s go ahead and go there. What role is telemedicine playing in your current delivery model? Is it dominant? Is it different post COVID or not? Jacob.

Jacob Bregman: Yeah. I think it has shifted, but I think it’s here to stay. And at the beginning of the pandemic, probably in April of last year, somewhere around 80% of the appointments Everside completed were virtual. And I think that’s stabilized, I’ll use the word stabilize, who knows, but around 30 to 40% now of care is still being completed virtually. I think there’s been a lot of learning and a lot of comfort development on both sides, both patients and providers. Patients realizing that this is something that is convenient and safe and trustworthy, and I like it. And on providers really saying that, hey, there’s a lot of medicine I can practice with a video feed or even a telephone call to the members.

And then we wrap that around the physical clinics, the health centers that we have. So probably the classic example is abdominal pain, there’s certain elements of abdominal pain that the providers can evaluate virtually, but probably the patient does need a belly exam for comprehensive care. So the same provider who speaks to the patient on the video visit can then say, great, if you want to drive over, we have an appointment this afternoon, and we can complete the care that way.

Brian Betner:  Chad, is technology or telemedicine or telehealth generally, is that playing a role in Encompass’s model or has COVID changed that?

Chad Knight:  It has, there were waivers this year to allow telemedicine visits, and we found that we use them I think more so when COVID was really bad and for our patients, it seems like a lot of them still prefer in-person visits. So I think telemedicine is here to stay, but I don’t think it’s going to replace having a nurse there in person.

Meg Duffy: I can tell a little story around that if it’s relevant, if you don’t mind.

Brian Betner: Oh, please.

Meg Duffy: Because you’re right, Chad, we’ve had the same response, particularly from certain consumer segments that are just, they love seeing their provider, they want to see their doc, who they’d been going to for years or whatever. But one of our partners in the Pacific Northwest, earlier in COVID said, Hey, we’re struggling to get our patient panel in to see their primary care for health maintenance visits, how can you help us with that? You have assets in the market, you’ve got teams that are already going into homes, is there something we can pilot there?

So over the past year we’ve been piloting what we call a clinic without walls, and it’s essentially one of our medical technicians going out into the home, and then tele-presenting back to our partners primary care provider. And for being able to, again, provide point of care lab testing, and some of that hands-on stuff that otherwise you can’t do with just a virtual visit. And we’ve now since been able to survey our patients that we’ve treated through that mechanism, through clinic without walls.

And all of them say that it saved them two or three hours than a typical visit would, all of them say that they loved it and that they would do it again, but all of them also said that their preference would be a hybrid model, that they would see their providers in person sometimes, and then on the off times, or here and there they’d be able to interact with them with the clinic without walls model.

So I agree, I think it’s here to stay, but there’s going to be this blend I think in the future, and we have to think about the difference in different consumer segments and their preferences and being able to accommodate those.

Brian Betner:  Does provider or physician… the acceptance of that model, a technician going in and facilitating that, providers accepting of it. I mean, you’ve got physicians like IO and that works for me, I like it. Some of them, okay, yeah.

Meg Duffy: Some of them. So some of them been kind of like, how’s this going to work, a little… some of the provider that we’ve had, a couple of providers that we’ve had piloting that have been wonderful and they are totally bought in once they see the technology, they actually say the heart sounds, the lung sounds, the ear sounds are better through technology than they are through a stethoscope or for what they’d be hearing in the office and they have the ability to record those things, go back and document it in the chart that way. So I think they’ve really seen the value.

And then just to, also while I have the floor answer a question I saw come through at least on the panel side, around we leveraged remote patient monitoring, we leveraged personal emergency response devices. And our view is that eventually we’re going to have to be able to partner with any of those solutions, any company, because we’ve got, again, a diversity of partners from health systems and payers that may have preferences for RPM or for pers devices. And we want to make sure that we’re leveraging those so we can keep people safely in the home, but that we can not create unnecessary limitations with which devices we can be compatible with.

Jacob Bregman: And if I can add one idea onto that, talking about the acceptance of virtual health across different areas of healthcare mental health, I think it’s been remarkable and a really great thing for society to see the very quick acceptance of virtual mental health care. I think despite all of the work that we’ve done over the years, there still is a little bit of a stigma for patients going into a psychologist, psychiatrist office versus finding a comfortable, confidential space to do a virtual visit. It has done great things I think we’ve seen within our population.

Brian Betner:  Jacob, that’s interesting, because I often think about building a… in emergency situations, this doesn’t really happen as much, but building a rapport, so there’s a trusted relationship, there’s a sense it’s hard to do that in initial virtual encounters, that hasn’t appeared to be a hurdle from every side’s experience.

Jacob Bregman: It really hasn’t, I think what you just described is what all of us anticipated at the start of this. And I think we’ve seen those walls break down very quickly, and again, on both sides, both from the provider feeling as though she or he is… it’s more challenging to create that rapport without seeing the person in person. And on the other side the patient feeling comfortable to have this type of relationship across the screen.

Brian Betner:  There’s a notion, I mean, if you go to most health systems websites today, you’re going to see the words clinically integrated, we’re a clinically integrated delivery system. It’s a strategy officer’s [inaudible] love it Meg. It’s a concept, now it has legal parameters on it, if you think from antitrust issues, but at the end of the day, I mean, it’s a delivery model and it assumes that providers are collaborating with other providers and you’re sharing information. How does that work within, Chad, from Encompass’s perspective, historically there’s probably a lot of handoff situations, right?

Your post-acute managing patients in a home health setting after discharge, post-surgery that sort of thing. What is clinical integration played a role in each of your models in terms of affiliating with other providers?

Chad Knight:  Yeah, I think more and more it’s coming up and providers are asking for it, so we have contracts where we share data, share metrics, track quality at its core I think it’s the same thing we’re all doing improving results for the patients, and that’s all of our goals. So the more that we can incorporate metrics that are aligned between us for the patient and actually track those, hold each other accountable, meet and discuss, the more we’re seeing benefits.

Brian Betner:  And, are those metrics. I mean, some of this is co-management, right? You and another provider type. I mean, is metrics, is that information that’s, is it solely within Encompass providers jurisdiction or some of it because it’s the care’s being managed with a primary care provider you’re not affiliated with, I mean, are they all internal metrics to encompass providers or are they metrics that kind of measure more of that continuum or other aspects of care that you’re not exclusively responsible for?

Chad Knight:  It’s both and it depends on the metrics, right? So, some data we’ll have to share, some the provider can add data to our EMR or vice versa. But I think in most cases it’s, we need to share reports and meet and talk and [crosstalk]-

Brian Betner:  Direct primary care. What’s that?

Chad Knight:  It’s not as easy as it sounds on its face, so.

Brian Betner:  Right. Jacob, direct primary care. How does that work with specialists? How does that work with relying upon the various specialties and subspecialties that your FPs and APNs, et cetera, lean on?

Jacob Bregman: Yeah. So I think in primary care we view our role as the quarterback or the coordinator of the patient’s care. And so when we think about specialists and referral needs, we kind of think about it in three tiers. So the first tier would be, with the right time and tools and training of our own providers, can we get this done inside Everside?

Now the next would be perhaps the, maybe it’s a diabetic and the patient’s situation is on the bubble at the edge of the telemedicine providers training. We leverage an e-consult service to do basically a curbside consultation in that case with an endocrinologist to get an opinion. And then that might result in a referral to that endocrinologist.

 One of the nice things about our models, because we’re working with clients, we work with a defined number of health plans, so each of our clients typically only has one, maybe a handful of health plan options. So we get to know those pretty well, who’s in-network? Who’s going to give us great quality, great service and keep those costs low? So that’s our view of the world of specialty, we as much as possible try to keep it in house, and when we do need to be on our specialist partners, we try to use the best plan information and analytics to make sure that we’re sending patients to the best specialist.

Brian Betner:  How does your EMR work? Providing access and populating it with those providers? Do you have relationships… you have relationships where they’ve got direct access, how does that work?

Jacob Bregman: Yeah, it’s a difficult question to… because there’s not just one answer there. Certain health information exchanges in different States make it very easy for us to retrieve information. Some people might be familiar with Epic, Epic has a care everywhere functionality that is very easy to use, so the primary care provider can get records more easily. But I’ll be very honest with you, there are still instances where we’re getting faxes and other records in older ways and we’ll incorporate those so we can make sure we have everything we need.

Brian Betner:  The occasional pigeon or so. Yeah. Meg, how does DispatchHealth integrate? You probably have given the remote monitoring technology, I’m sure you’ve got direct access. You’re an extension in some cases for your hospital relationships, right? You do have direct access to the EMR?

Meg Duffy: Depends on the relationship and we’re working on further integration with Epic specifically, but I would say, what we do is digest their network, and our platform is able to refresh that and make sure that if we need to send a referral we’re sending it within network for that patient. So that’s first and foremost.

One other things though that we find with our model as it grows and evolves as we become our own referral source, so when we’re in a patient’s home for an urgent care or emergency care level visit, six to 8% of the time, somebody needs to be admitted for further observation or for a short stay, and we’re able to evaluate their home environment right then and there and say, okay, would they be eligible to be admitted in the home.

 And so when you’re doing that with our model, we have 98% acceptance rates where patients are like, sure, great, okay, yeah, you can do that right here, I can safely be admitted at home, I’ll do it. When they’re in the hospital, and this also gets to another question on the Q&A, when they’re in the hospital and they already show up either by ambulance or self or whatever, and they’re in the emergency department and a physician says, Hey, we’re going to need to admit you, but we can admit you at home, we’re partnered with Dispatch or Medically Home or others that do hospitalization in the home. The admittance rate is I think less than 2% or something, because it’s very hard for patients, once they’re already there physically to understand, wait, I got to go home now and you can actually do that at home, but I’m here. So you don’t want to take care of me or, can you just do this now?

And so our acceptance rate when we’re referring to ourselves for that next level of care, are a little bit different than a specialty consult, but for that next level of care is really high. And so we continue to see benefit with having a full continuum of options to offer patients.

And then the question also starts to ask about the decline in volume, these are patients that I don’t think health systems will be incentivized for the long haul to keep them in their four walls anyway. And it’s actually going to be a win-win a benefit to the health system and the patient to be able to treat them at an appropriate cost setting.

So, I do think there may be a decline in admissions, but hopefully a pickup in value over the course of time, and then I do think that the reliance on elective procedures in the inpatient setting is short-sighted, with the vast majority of those things moving to the outpatient space safely, hospitals are going to have to figure out another way I think to partner with folks like us who are willing to help them create opportunities to right-size care and safely care for patients where they are when appropriate.

Brian Betner:  So, the whole notion of decline in volume is a good segue to address some COVID issues here. Chad, want to go around the horn here, but I think I want to hear from each of you on two items, what was the biggest impact COVID had on your delivery model? And number two, what do you expect… is COVID changing your operations beyond, let’s assume everybody’s vaccinated in 42 days and we kill this thing and the malls are full and everything’s happening, let’s assume all that. How COVID may change if at all, or is it not changing operations post PHE? Chad, how did COVID impact volume? How did you react and is anything going to last?

Chad Knight:  Yeah. So COVID had a lot of challenges for us I think like everyone else, our patient volumes decreased a lot in Home Health, we had decreases in visits per episode, and also on the supply chain side, we had disruptions, we had trouble getting masks and other PPE, so either delays in that or price increases. And that continued for months, so I think once that’s resolved and everyone has equipment they need on time and it’s not worried about getting it, that’s big difference. And I think you’re right, COVID could go away and I don’t know that anything changes from power handling it now, I think we’ve made the adjustments that we need in our operations to handle it if it comes up again and made improvements in where we’re at. So I don’t know that we’ll have… we’re not going to flip the switch or anything and change everything [inaudible] it’s gone. So.

Brian Betner:  So, that makes sense, Jacob.

Jacob Bregman: Yeah, for us I know we’ve talked a bunch about this shift to virtual, and I think that’s here to stay, I think finding a good balance between in-person virtual visits is probably what will be the future for us. I mean, to be honest, 10 months ago I was wondering, will we continue to build primary care health centers as we continue to shift to virtual? And the answer has been a resounding yes. And when we work with employers and union groups and other trust fund groups, they’re still interested in having an onsite and near site place where their folks can go to receive care.

If I can highlight maybe one other thing that was a silver lining or something good about the pandemic is I think it got everyone thinking about health care. And when we think back to the beginning when no one really knew what to do or how to get tested or things like that, the public health guidance was, go talk to your PCP.

And I think there were a lot of folks out there who said, I don’t have a PCP and that was their motivation to say, Hey, I probably need someone in my corner, and so they got themselves into the healthcare system which I think is great for everyone.

Brian Betner:  Yeah. Great talk. Meg.

Meg Duffy: Well, so COVID kind of threw us for a loop, similar things like everybody, we had to acquire PPE and make sure we had all the right safety protocols. But we were a leading indicator of COVID volumes, we would be getting called for asymptomatic testing, we’d have people with symptoms coming into their home to do testing so they didn’t have to go out in public and either risk getting the virus or risk spreading the virus.

And so it just accelerated, we had the busiest year, of course we’ve been growing year over year, but I mean, just way more than we would’ve anticipated, with just your seasonal communicable disease, and so COVID accelerated our business model, absolutely. But it also I think highlighted some areas of opportunity for us to, like we have been doing now is evolving across the continuum.

So early days we could get out there and we could send a team, and we were doing asymptomatic or symptomatic COVID testing, and we quickly realized, gosh sometimes for example it’s a whole family that needs the testing. How does that impact our logistics engine and our predicting on-scene time and some of those things. And so it’s made us think I think a little bit differently about how we’re onboarding patients, the questions we’re asking, how we’re working them through the process as well as rightsizing care once again, so I’ve said that a few times, but if we’re just doing a point of care tests, we can send out a medic, we maybe don’t need to send out a whole team.

And so just thinking again about what are the resources that are truly needed, because in the past year we were very full in all of our markets mostly with COVID. And so that is a little bit of a concern too, for us, just from seeing volumes drop for other communicable diseases, what will seasonality look like in the future? It’s kind of a wild card, I think, but should be fun to solve whatever that challenge may present.

Brian Betner:  Said by a true strategy officer, that’ll be fun. Yeah, I love it. So, hey, so let’s close with this. I want to ask each of you, your wishlist, your one item from your delivery model, meeting the patient, outpatient, home care. What is the hurdle that you want to overcome? What’s the wishlist? Is it a reimbursement one? Is it a regulatory issue? And your perspectives are going to drive this. I mean Chad’s a lawyer, so he’s going to want, we want free-market principles. What is the one wishlist that would absolutely optimize your strategic goal, your care model, et cetera. Chad, I’ll start with you.

Chad Knight:  Yeah. I think, so right now there’s I think a lack of tele-health reimbursement throughout healthcare. And so the reimbursement model needs to catch up to the technology. So that would be my first ask.

Brian Betner:  Right. Yeah. And there’s a long list of people behind you with that one. Jacob.

Jacob Bregman:  Yeah, for me it’s a bit of a buzzword, but value-based care. And that term has been around for a while and I still don’t feel like we’re where we should be, I think the world still revolves around fee for service and the incentives are aligned to provide more healthcare as opposed to the right healthcare.

Brian Betner:  Yeah, I get it. Meg.

Meg Duffy: I second both of those notions. So I agree, but I will add just for a different flavor, that for us, the variability in scope of practice, limitations by state, really, I think inhibits our ability to innovate and think creatively about how we use the right resources for the right care at the right place. So, that would be probably my number one if not for reimbursement.

Brian Betner:  Yeah, that’s absolutely huge, the inconsistency, we have 50 States you have to navigate with those issues. Absolutely. So we are right at the 60 minute Mark. And so here’s what we’ll do. I’m going to turn it over to Julie here in about 12 seconds to make a closing statement from an admin perspective. But we’ll take a look, make sure we answered any questions. Do not hesitate to reach out to us and follow up if you have any inquiries on anything you heard here today, I am absolutely grateful, you took an afternoon here in late March to speak with us and especially want to thank each of the panelists for their expertise and experience.

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EKRA Enforcement Developments and Moving Forward

EKRA Enforcement Developments and Moving Forward

Recovery Homes, Clinical Treatment Facilities, and Laboratories must continue to be mindful of the Eliminating Kickbacks in Recovery Act of 2018 (“EKRA”), an all-payor statute enacted in 2018 prohibiting kickbacks related to remuneration for referrals to these entities. EKRA’s passage generated uncertainty surrounding its applicability and enforcement, particularly regarding the statute’s breadth and its interplay with permissible arrangements under existing federal health care laws. However, the Department of Justice announced its first conviction under EKRA at the beginning of 2020, signaling the government’s commitment towards enforcing the statute and emphasizing the importance of structuring compliant arrangements.

Podcast Participants

Alyssa James

Attorney, Hall Render

Gregg Wallander

Attorney, Hall Render

Alyssa James: Hello. Welcome to Hall Render’s Practical Solutions podcast, featuring thoughtful analysis and insightful commentary on the legal issues facing the healthcare industry. My name is Alyssa James and I am an attorney with Hall Render, the largest health care focused law firm in the country. Today my colleague, Gregg Wallander, and I will be discussing the EKRA Law, which stands for Eliminating Kickbacks in Recovery Act of 2018. This law was passed in October of 2018 as part of a larger act known as the Support Act, which focused on substance use, disorder prevention, as well as opioid recovery and treatment. This law was passed with the intention of being a comprehensive law that would combat the opioid epidemic at various levels within the healthcare industry.

Alyssa James: Now, I am going to kick it over to Gregg to give us a little more background and an introductory discussion into EKRA and its implications.

Gregg Wallander: Thanks Alyssa. EKRA was ultimately buried in an opioid law when it was enacted, and really caught a lot of people by surprise. It was not part of the initial drafts of the Support Act, as Alyssa mentioned, but it ended up being buried in there like a peanut butter and jelly in between two slices of bread, and it’s right in the middle there.

Gregg Wallander: We are faced to deal with this law, which is very comprehensive. EKRA is an all-payer statute and it addresses services that are covered by any health care benefit program, so it applies to both federal payers as well as commercial insurers. The reason is because it’s a federal law and applies to programs affecting interstate or foreign commerce. But what it really does is establish criminal sanctions up to $200,000 fines and 10 years imprisonment for kickbacks with respect to services covered by any type of healthcare benefit program, as I mentioned. It prohibits kickbacks regarding the solicitation or receipt of remuneration for referrals to recovery homes, clinical treatment facilities, or laboratories.

Gregg Wallander: Laboratories have received the most scrutiny under this law at this point in time, and EKRA further criminalizes the payment or offer of remuneration to induce a referral. So soliciting or inducing the referral can cause liability under EKRA. This is a very broad statute that impacts the ability to pay, solicit or receive money in exchange for referrals or patronage for recovery homes, clinical treatment facilities, or laboratories.

Gregg Wallander: Now, where we see some of these issues in practice really come into play, what about employees? What about payments for marketing services, payments to independent contractors, those kinds of things?

Gregg Wallander: We have discounts with respect to pharmaceuticals. We have discounts with respect to laboratory services. We have discounts that go across the board in the healthcare continuum. We have employment arrangements and we have services arrangements. There’s a lot to deal with here with EKRA.

Gregg Wallander: Alyssa, let’s talk a little bit about the exceptions with EKRA. Let’s go through them and we can chat about them. As I mentioned, there are discounts across the continuum, but there is an exception under EKRA for discounts as long as they’re properly disclosed and reflected in the entity’s cost or charges. In the supply chain context, there are exceptions for this. There also is exception coverage language for Medicare coverage gap drug discounts. From a discount perspective, EKRA does have those two exceptions to keep in mind.

Gregg Wallander: Alyssa, let’s talk about payments to employees and independent contractors.

Alyssa James: Sure. Thanks Gregg. As you mentioned, there are several exceptions to EKRA. I think one thing that just kind of more broadly is important to note is that some of the exceptions under EKRA are less forgiving, or permit fewer activities than would be permitted under the federal Anti-Kickback Statute. I think it’s important to kind of keep in mind when you’re thinking through these types of arrangements that something may be permissible under the Anti-Kickback Statute but not permissible under EKRA, and so that’s an important distinction. To your point, Gregg, regarding payments to employees and independent contractors, there is an exception for that under EKRA, but that exception requires that the compensation that’s paid to those employees or independent contractors not be determined by, or vary based on: the number of individuals that are referred to a particular entity that’s a part of the arrangement, or outside of the arrangement; the number of tests or procedures that are performed; or the amount that is billed or collected from health care benefit programs.

Alyssa James: And so when you read the plain language of that exception, and then review the exceptions to the exception, if you will, EKRA on its face prohibits the commission-based payments that are very common, especially in the laboratory space for sales reps and similar positions. The types of arrangements that maybe would be permissible under the Anti-Kickback Statute, for example, don’t meet the corollary exception to EKRA because of those caveats of what those payments to employees and independent contractors cannot be based upon. EKRA really is trying to focus more on fixed-fee compensation for employees and independent contractors, which generally speaking is a pretty big shift for the industry as far as what would be permitted for those types of relationships.

Gregg Wallander: That’s spot on. We’ve spent a lot of time, as you know, dealing with questions from clients across the country. Every conversation seems to be, “Is this really true? Can we not pay a commission anymore? Can we not pay incentive for achievement in this regard? Every sales person is compensated in this manner.” We agree and understand this sentiment. It does seem very unrealistic that the intent was to be this broad when you’re dealing with the private commercial insurance world. But, as Alyssa mentioned payments to employees and independent contractors that are not determined by, or vary with individuals referred, number of tests performed, or amount billed, really cut off a lot of mainstream and accepted sales arrangements.

Gregg Wallander: There are already laws on the books as well as industry guidelines, like the Pharmacode and AdvaMed Guidelines, which govern institutional relationships and sales relationships between entities to remove issues of inducement. So there are already safeguards on the books, but yes, we’ve had to advise that this law is broad and it potentially implicates a number of commission-based and other sales relationships.

Gregg Wallander: I think there are entities saying, “Wait, it’s just really hard to believe that this can be intended in this manner.” We certainly empathize with that. I think a lot of folks have been saying, “Hey, let’s see how this develops and see if Congress changes its mind or realizes that this was really an overreach.” We’ve talked with our DC office folks about this, and it’s not clear that really there is an intent to revisit this.

Gregg Wallander: It can be politically expedient on either side of the aisle to say, “Hey, we’re against opioid abuse, and so we’re not going to touch any of these laws for fear of looking weak,” or some other term. Again, our interest is in making sure we get this right, but it’s not clear that this law is going away anytime soon.

Alyssa James: I think that’s exactly right, Gregg. In the law itself, there are references to regulations that may be promulgated in the future, and we’ve seen nothing to that effect. We have this law that on its face seems overly broad and much more restrictive than existing laws, and not just in the sense that it also applies to commercial patients in addition to federal health care program patients, but also just in the conduct that on its face, it permits.

Alyssa James: In the year-and-a-half since it has been issued, we’ve seen no proposed regulations or any discussion about forthcoming proposed regulations that would maybe help clarify or fine-tune a little bit the intent and maybe give some additional framework for healthcare organizations, especially labs and entities that contract with labs, to maybe give a little more flexibility, or at least move the needle a little bit back to where it was before. When we’re talking about this, even though we’re talking about this in the context of an opioid law, it’s important to remember that it applies to all laboratory services, not just those related to opioid testing and treatment.

Alyssa James: So it’s very broad, and I think there are a lot of stakeholders in the industry who maybe aren’t aware of how broad it is. Or, like you said, Gregg, just waiting to see what happens before they take action to restructure all of their compensation arrangements that they may have with employees or independent contractors, specifically, at least with regard to that exception. So far, we haven’t seen any sort of guidance or inkling from Congress or regulators that would help to narrow down that scope a little bit or provide any more clarity.

Gregg Wallander: In moving forward, let’s round out a few of the final exceptions, and then we’ll move on to enforcement. There is an exception for: waivers or discounts of certain co-payments or co-insurance as long as it’s in good faith and not routine; certain transfers to federally-qualified health centers under the Anti-Kickback Statute safe harbor; and remuneration made pursuant to approved alternative payment models, meaning different kinds of payment programs for the government.

Gregg Wallander: If you’re outside of the employment context and you’re looking at discounts or other kinds of payments, there are some other exceptions to examine and find out if you fall within those. The main question we’ve gotten after looking at the exceptions relates to enforcement, and with respect to all federal laws, usually when they get put on the books, there’s a time lag for enforcement as the Department of Justice gets its arms around it and as everyone in the industry kind of gets their arms around it. It looks like we’ve had to wait about a year and a couple of months for enforcement. EKRA was enacted in 2018, but just this year at the start of 2020, we finally have an enforcement action. Alyssa, you want to chat a little bit about that and go from there?

Alyssa James: Sure. As you mentioned, we’ve seen one enforcement action back in February. That enforcement action involved an office manager of a substance abuse clinic in Kentucky. That office manager was allegedly soliciting kickbacks from the CEO of a toxicology lab in exchange for urine screening drug testing referrals.

Alyssa James: The period of time in which the alleged conduct occurred was from around December of 2018 to August of 2019. In the period of time after EKRA was enacted, of course, but not an overly long-standing arrangement before it was under investigation. The office manager who allegedly received a check of $4,000 from the CEO of the toxicology lab as a part of a larger package of promised inducements (that were not actually received) ended up being sentenced to five months in prison followed by an additional five months of home detention, and was assessed a fine $55,000.

Alyssa James: Although the alleged inducement or kickback was really only valued at $4,000, her fine there was $55,000 plus time in prison, which is obviously significant. It doesn’t go up to the maximum allowable under EKRA which is up to $200,000 in fines and up to 10 years in prison. But certainly, it would appear that the government is trying to let folks know that the enforcement under EKRA, if you find yourself in that position, will not be taken lightly given the prison time and the fine assessed in the one enforcement action that we do have.

Gregg Wallander: Yes. This is significant, as again, when we wait for a law to be enforced, and people have wondered, “Can the government really mean this?” Well yes, they do. It is going to be a law that is going to be prosecuted in some manner. My sense is that we’ll see some sporadic enforcement. I think it’s going to take some sort of a marketing relationship, or some sort of sales commission relationship that has been very commonplace and deemed very legal forever, that rises to a level to see if in fact there would be congressional action.

Gregg Wallander: I think everybody needs to understand and to respect EKRA. There is an enforcement now on the books, it’s there. There was a $4,000 inducement situation which resulted in a $55,000 fine and five months in jail. Pretty significant given what the issue was.

Gregg Wallander: We’re going to have to continue to monitor this. Our advice is to continue to monitor EKRA. I think folks need to be aware of the scope of EKRA and that you can’t just assume that because it’s not government, that you don’t need to review all your relationships. You do need to review them. Again, don’t assume that if it’s just commercial, that you can move forward. Again, the government’s recent enforcement action underscores the need to remain keenly aware of the statute and maintain compliant arrangements.

Alyssa James: I think that’s exactly right. I know we’ve seen an increase recently in the necessity of EKRA-related analyses in light of the COVID-19 pandemic, for example, and proposed arrangements with labs related to COVID testing. Again, EKRA is not limited to opioid-related services and testing and there was a flurry of new arrangements and continue to be, to some extent, as a result of the pandemic that we’re currently facing. It’s important to keep EKRA in mind there as well and the implications that it may have on those arrangements.

Alyssa James: Of course, I think when folks are faced with very time-sensitive analysis and arrangements because of the nature of COVID and wanting to get that testing up and running, it’s easy to quickly put those arrangements in place without vetting out some of the regulatory implications, especially those like EKRA that folks may not be as familiar with. While there have been waivers issued for certain fraud and abuse regulations related to COVID treatment and responses, which we’ve discussed on previous podcasts, there have been no published waivers that are corollary to that for EKRA. So, it’s something to keep in mind. Just because something is in response to the pandemic doesn’t mean that these regulatory implications may not still be there.

Gregg Wallander: Exactly. In wrapping up, if you’re dealing with recovery homes, clinical treatment facilities, and laboratories, be aware of all of your relationships. Take a good inventory of them. Talk with counsel and see if any modifications are necessary. Appreciate everyone listening today and hope you are all safe during this time.

Alyssa James: Thanks everyone.

Gregg Wallander: Thank you.

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Navigating COVID-19 Contracting, the Stark Waivers and Why Providers Need to Act Now

Navigating COVID-19 Contracting, the Stark Waivers and Why Providers Need to Act Now

Alyssa James and Joe Wolfe chat about the latest guidance on the Stark Law waivers and why timing and documentation are critical for health care organizations that intend to rely on the waivers. 

Podcast Participants

Alyssa James

Attorney, Hall Render

Joe Wolfe

Attorney, Hall Render

Alyssa James: Hello and welcome to Hall Render’s Practical Solutions podcast featuring thoughtful analysis and insightful commentary on the legal issues facing the healthcare industry. I’m Alyssa James, an attorney with Hall Render, the largest healthcare focused law firm in the country, and today my colleague Joe Wolfe and I will be discussing the explanatory guidance that was recently issued by CMS in order to clarify certain aspects of the COVID-19 Stark Blanket Waivers and discuss how providers can respond to the waivers and the explanatory guidance in order to better modify their relationships with their physicians if they so desire.

Alyssa James: On April 21st CMS issued explanatory guidance to further clarify and elaborate on its intent when it issued the Stark Blanket Waivers that we discussed in an earlier podcast several weeks ago. Those waivers were issued at the end of March in response to the COVID-19 pandemic of course. But before we dive into our discussion today about the details of the explanatory guidance and other recommendations for providers, Joe is first going to give us a quick recap of the Stark Waivers and the types of situations in which they may be relied upon in order to set the stage for our discussion today.

Joe Wolfe: Yeah, thanks Alyssa and thanks to everyone listening to today’s podcast. Alyssa and I have been working through this kind of analysis around the Stark Waivers for hospitals and health systems nationwide as they react and continue with their physician contracting and fraud and abuse and related compliance issues. And on top of that, we’ve also been working with healthcare organizations to help develop documentation supporting reliance on these waivers. And as Alyssa hit on already, these waivers were initially issued back on March 30th, were made retroactive to March 1st, so they do cover any activities that fall within their scope going back to that March 1st timeframe. And I think providers were happy to see that retroactivity. Now they’re set to expire at the end of the declared public health emergency period, and so that tells us a bit about our timeframe we’re talking about, going back to March 1st through the end of the national emergency.

Joe Wolfe: This recent guidance that was issued on April 21st spoke a lot about the importance of timing. Essentially, the government said that if you’re going to rely on these waivers, the amounts you’re paying should be made within the waiver period. I think more than anything that means that healthcare organizations need to do their analysis and need to move quickly. And that’s because any payments or disbursements, whether it’s in the form of a loan proceed or additional payments for services or space or equipment or other items that occur after the termination of the waivers are likely going to have to meet the requirements of an actual Stark exception. And for many of our clients, we’ve always recommended they try to meet a Stark exception. But if they’re going to try to rely on these waivers for potentially more aggressive compensation terms or if they’re looking to pay above previously contracted rates, they might still want to look to these waivers.

Joe Wolfe: There could be some room for analysis here if some obligations are going to fall after that waiver period. The government gave an example of loan repayments that were agreed to prior to the termination still being okay if they fell after the termination of the waivers without being problematic. That example seemed to be where you would have a repayment of an obligation falling after the termination rather than a new disbursement, and that may open up the opportunity for reconciliation type payments or recapture payments after the waiver period. However, again, those new disbursements of money likely will need to be analyzed more carefully and you may need to look to existing exceptions.

Joe Wolfe: I think the bottom line here is for healthcare organizations that are listening to this podcast, if you’re going to rely on a waiver, you should do the analysis. If you have an arrangement that may not fit squarely within an existing exception, you may want to take steps now to address questions to try to understand whether you could pursue a wavered arrangement. Now you’d want to get contemporaneous documentation in place. The government has said that you should be ready to produce that documentation if the government asks for it, so you should be taking those steps now. I think all of that will help reduce future headaches. The government has said it would work with the Department of Justice to address False Claims Act relater suits or whistleblower suits after the fact here, where parties have acted with a good faith belief that they’re falling under the waivers, and that’s where this really fits into the overall compliance part. If you’re going to take actions now, if you line up reliance on the waivers and you have a good faith reliance on those waivers, it could help you avoid future whistleblower suits or hopefully the government would step in to move towards a dismissal if there is a future whistleblower suit.

Joe Wolfe: The waivers themselves, as we hit on in the earlier podcast, they’re not just a free pass. If you’re going to use them, you should identify a COVID-19 purpose. There were six of them identified in the waiver documents. Second, you should fit within one of the Stark Waivers. There were 18 of them identified in the first go round. And then you should develop the documentation supporting the use of those waivers. For those first six COVID-19 purposes, they fell in a number of different categories. The first focused on diagnosis or medically necessary treatment of COVID-19 for patients or individuals. The second focused on securing the services of physicians and healthcare providers to furnish medically necessary services.  Third, ensuring the ability of health care providers to address patient and community needs.  Fourth, expanding capacity of health care providers to address patient and community needs. Fifth, shifting the diagnosis and care of patients to alternative settings of care. Then a final number six, a very broad category that discussed addressing medical practice or business interruption due to the COVID-19 outbreak. That really gets at the scope of some of these COVID-19 purposes that you should align with. And as a threshold matter, you should figure out which of those you actually line up with.

Joe Wolfe: The new guidance we’re here to talk about mostly today discussed some different areas that did need some clarification around action and timing of relying on these waivers, about amendments to the waivers, the application of the waivers, indirect compensation arrangements and special issues related to loan, recruitment and professional service agreements. Alyssa and I are going to step through some of that guidance in this podcast. So Alyssa, I’ll turn it to you to start the discussion on some of the explanatory guidance.

Alyssa James: Thanks, Joe. That was a great recap and I completely agree with the examples that you provided in that discussion thus far. As Joe said, now we’re going to walk through some of the explanatory guidance and specific parameters and examples that CMS set forth. Something that’s important to keep in mind as we evaluate the waivers and the corresponding explanatory guidance. In that in that recent explanatory guidance, CMS reiterated that financial arrangements and relationships with physicians and referrals from physicians must still satisfy all of the non-waived requirements of the applicable Stark exception. Because many of the waivers may only weigh one or a few components of an applicable Stark Law exception, healthcare organizations need to ensure that their arrangements with physicians continue to comply with the remaining non-waived components of those exceptions. So, it’s just important to keep in mind that the waivers are not a broad brush to do whatever you would like in your physician relationships. We need to really, as Joe hit on as well, clearly focus on what those waived requirements are and then make sure that we’re satisfying any other requirements of an exception that may not be waived in a particular scenario.

Alyssa James: CMS also issued guidance on how to amend certain compensation arrangements in light of the waivers if required for your particular circumstance while still remaining in compliance with Stark. Due to the fact that so many Stark exceptions require that compensation arrangements with physicians be in place for at least one year, CMS has received some questions from industry stakeholders in response to their issuance of the blanket waivers regarding the ability to amend a compensation arrangement to account for those COVID-19 adjustments that they may be considering. And then along with that, the ability to potentially amend those arrangements again in order to, for example, revert back to the standard compensation terms that were in place prior to the COVID-19 pandemic adjustments and wanting to make those adjustments back to the standard compensation terms at the end of the public health emergency period.

Alyssa James: And so, in its discussion CMS reiterated some old guidance from the 2009 IPPS final rule that allows subsequent amendments of compensation terms of arrangements, even if those occur within the first year, so long as those modifications are set in advance, otherwise comply with the requirements of the Stark exception. For example, they can’t take into account volume or value of referrals of course, and things of that nature. And then the overall arrangement must remain in place for at least one year after the amendment. Therefore, healthcare organizations and providers could amend an arrangement to change compensation in light of that organization’s response to COVID-19 and then amend the arrangement again at the end of the public health emergency period or any time prior to the end of the public health emergency period if they don’t desire to continue that modified arrangement throughout the entire declared emergency and revert back to the existing compensation terms. So, CMS has acknowledged there’s some flexibility there, not necessarily in conjunction with the waivers but just in conjunction with their guidance and interpretation of that one year requirement more broadly.

Alyssa James: A more practical solution I think that we’re seeing rather than amending an arrangement to adjust for COVID-19 and then amending again and that we’ve seen a lot of clients doing would be to maybe include language in the initial amendment that states that the compensation will revert back to the prior compensation structure at the end of the declared public health emergency period if that’s your desired timeframe. This eliminates the need for two separate writings to document the change and then shift back to the prior fee structure, which just can help streamline things and make it a little more practical for providers and their physicians. We typically find that if we can limit the number of signatures that need to be obtained, for example, and the number of documents, it just sets the parties up for success as far as not having to spend so much time preparing documents and signing things and such.

Alyssa James: So, if you know at the outset of your COVID-19 adjustments when you’re doing that initial amendment that you’re going to want things to revert back at the end of the declared public health emergency and not prior to that, again they can’t continue beyond that, but within that time period and you’re going to want to revert back to what the compensation was prior to COVID-19, you could go ahead and include that structure in the initial amendment and potentially alleviate the need to do a subsequent amendment a few months or however long down the road.

Alyssa James: And now Joe is going to talk us through some of the additional guidance that CMS provided regarding things like indirect compensation arrangements and loan arrangements with physicians.

Joe Wolfe: Yeah, thanks Alyssa. First, one question that emerged from the initial Stark Blanket waiver guidance was how does this work with respect to indirect arrangements? And for those of you familiar with a Stark analysis, you know that an indirect arrangement is triggered if you have an unbroken chain of financial arrangements between a healthcare organization and a physician. And there is a more granular analysis around aggregate compensation that varies with the volume or value of referrals and if the entity has knowledge of the indirect financial relationship. And so, as healthcare organizations do the analysis around indirect arrangements, they would obviously like to know if they can rely on these Stark waivers. The government came out and said that the waivers do not apply to indirect compensation arrangements, and that is a practical matter there may not even be a need to look to the waivers because in many instances physicians will be deemed, if they’re owners of a physician organization, they’ll be deemed to stand in the shoes of their physician organization, or if they’re an employed position they may be permitted to stand in the shoes of their physician organization. So as a practical matter, many of those arrangements that may be indirect actually would become direct once you look to those deeming or permissive stand in the shoe rules.

Joe Wolfe: The government also pointed out that parties have the option to request individual waiver for their indirect financial arrangements if they have concerns about them fitting within a Stark exception and they’re unable to rely on the waivers. So again, the government here clarifying that these really are intended, the waivers are intended to protect direct financial arrangements including situations where physician stand in the shoes.

Joe Wolfe: The new guidance also spoke to the issue of repayment options for loans between entities and physicians. The government actually gave a significant amount of flexibility, noting that loans do not need to be repaid in cash. And in fact, healthcare organizations could look to in kind repayment as long as those in kind repayments are commercially reasonable. If there are situations where repayments are not commercially reasonable, those repayments may not fall within the waivers themselves. The government spoke about the need for the aggregate value of any in kind payments to be consistent with the amounts of the loan balance that’s being reduced through those in kind payments. And so, I think healthcare organizations that are going to look to in kind repayments should really do their work to make sure that they understand why the services they’re using to reduce that balance line up with any reduced payments.

Joe Wolfe: There also was some discussion around having a physician practice remaining in the community considered as in kind services. CMS did caution that relocation services to a community to establish a practice may be deemed to be a benefit to the community and not to the recruiting hospital. And I think that’s an important distinction that we’ve seen arise in prior commentary, that if the situation is one where the community is benefiting from those in kind services that may not be as appropriate to look at that as a viable in kind service that would reduce any outstanding payments. So again, the government did provide some alternatives here beyond just standard loan repayment.

Joe Wolfe: The government also talked about the repayment of loans, some of the timing issues that may arise as we think about the practical usage of these waivers. The government talked about in this guidance disbursements of remuneration after the termination of the waiver period having to satisfy an applicable Stark exception. That’s something Alyssa and I have both talked about, that if you’re going to have disbursements of loans or additional payments for services that are going to extend after the waiver period year, it’s going to be very challenging to rely on the waivers. That’s why you need to be doing some analysis using the facts and circumstances of your arrangement and really thinking about the timing and whether it’s going to be appropriate to continue to rely on those waivers. And if you’re, again considering these, you’re going to consider pursuing a wavered arrangement, you should do your review and your analysis and prepare that documentation now before the waiver period is over. And so, really this is some very helpful government guidance speaking to the timing and the ability to rely on the waivers and offering up some potential for in kind services to help reduce what liabilities are out there.

Joe Wolfe: I’m going to turn things back to Alyssa to step through a bit more of the guidance and then to close out the podcast.

Alyssa James: Yeah, thanks Joe. That was a great discussion of some of the additional guidance and options that providers may have. The last item that CMS addressed in its supplemental explanatory guidance is the concept of whether or not providers could potentially restructure income guarantees and other terms associated with existing physician recruitment arrangements with independent physicians and or physician groups in their communities. As you may be aware, there are instances where hospitals will enter into recruitment arrangements to relocate a physician to their service area and community, and that physician may be practicing completely independently or may be employed by another third party group practice. And so, those arrangements can be a great benefit for the community in order to get providers recruited to that area that may otherwise not have the means to relocate and start up a new practice in a service area that may have a needy population there.

Alyssa James: And so, there’ve been some questions CMS has received regarding whether or not those recruitment arrangements could be modified to potentially, for example, increase the income guarantee associated with that in response to the hospital and the physician practice’s COVID responses. In this explanatory guidance, CMS reiterated its long standing position that recruitment arrangements really should not be able to be amended to provide additional or potentially additional compensation to the recruited physician, because the purpose of that recruitment arrangement exception under Stark is to permit a physician to relocate to the community. If you’re amending a recruitment arrangement, CMS takes the position that that physician is already there and so they’ve already relocated their medical practice and the recruitment arrangement exception is not appropriate then to modify compensation terms midway through.

Alyssa James: That said, CMS did also note that there may be instances where other Blanket waivers would be appropriate to assist a physician or physician practice whose practice was experiencing interruption or struggling due to the COVID-19 pandemic. For example, providers could consider reduced rental rates to help these physicians or possibly below fair market value loans, those options that Joe described earlier, in order to assist the physicians in the community without restructuring their existing recruitment arrangement. So, all in all in this explanatory guidance, CMS has taken some follow-up questions that they’ve received from industry stakeholders and tried to clarify how the Blanket Waivers may or may not be applied to certain arrangements, which I think is helpful for providers and healthcare organizations as they look to utilize the waivers as well as maybe evaluate whether or not the utilization of a waiver is or isn’t appropriate for their organization and a particular physician arrangement.

Alyssa James: We hope that this discussion today has been helpful and has helped to interpret and discuss this additional guidance provided by CMS. When we’re evaluating modifications to various physician arrangements during the pandemic, of course it’s always important to remember to always pursue any compensation modifications or other arrangements with the proper purposes. Joe talked at the beginning about these proper purposes, but it’s just always important to keep that in mind with any sort of physician relationship. Also, remember to take action now to evaluate, potentially implement, and then also to prepare to wind down any compensation adjustments or modifications or new arrangements that you’re entering into during this COVID-19 time in order to ensure compliance with the waiver requirements regarding timing. As we’ve discussed, that timing element is very specific and very important when relying on the waivers, and so to make sure that you’re doing what you can now in order to make sure that you comply with those timeframes down the road. And as always, ensure that your organization’s strategic goals during this time are in line with the legal and compliance guidance and recommendations that have been issued by CMS and that we’ve discussed here today as well as on prior podcasts and articles that we’ve written in order to ensure that those strategic goals are in line with the legal requirements and vice versa. Joe, do you have anything else to add? Closing thoughts before we wrap up here today?

Joe Wolfe: Thanks everyone for listening to this podcast. As we’ve hit on a number of times, the time to act, to ensure compliance is now. We think that it’s important to act within the waiver period and documentation is always more compelling if it’s created at the time you were entering into the arrangements. And so, we think developing that documentation in writing right now is critical, whether it’s in the form of an amendment or a separate written agreement or some other type of supporting documentation. We’ve seen all of those approaches. We recommend that you do that now. You may want to capture the parties and the term, the type of the financial arrangement that you’re entering into, likely the proper COVID-19 purpose that you’re looking to, and the applicable waivers you’ve relied on. And Alyssa and I are hoping a number of healthcare organizations do that kind of analysis and we’re pointing healthcare organizations to developing best practices and making sure you have the tightest record that can help you down the road should you ever have to show that to the government or have to navigate a later compliance issue. And so again, thanks for listening in. I’ll turn things back to Alyssa to sign off.

Alyssa James: Thanks Joe, and thank you everyone for joining us today. If you’d like to learn more about topics that you heard in today’s episode, please feel free to visit our website at or reach out to either Joe or me via email. Joe can be reached at and I can be reached at Please remember that the views expressed in this podcast are those of the participants only and do not constitute legal advice. Thank you very much for joining us.

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Accelerated Payments and the $100 Billion Health Care Relief Fund: Financial Strategies for Providers and Suppliers

Accelerated Payments and the $100 Billion Health Care Relief Fund: Financial Strategies for Providers and Suppliers

The massive $2.2 trillion Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) signed into law March 27, 2020 includes $100 billion in reimbursement for hospitals and other health care entities to help cover COVID-19-related expenses and lost revenue.

Hall Render attorneys Liz Elias, John Williams and Lori Wink provide a 45-minute information briefing on the $100 billion health care fund, the CMS accelerated payment program and other key funding provisions included in the CARES Act. The briefing will also include recommendations about what you can do now to ensure your organization is prepared to access funding as soon as possible.

Podcast Participants

John Williams

Attorney with Hall Render

Liz Elias

Attorney with Hall Render

Lori Wink

Attorney with Hall Render

John Williams: Well, good day everyone. I hope everybody can hear me. I’m John Williams. I’m the office managing partner for Hall Render’s office in Washington D.C. I’m also the head of our Federal Advocacy service line. I want to thank everybody for joining us for this webinar on financial strategies for providers and suppliers regarding accelerated payments and the $100 billion healthcare release fund provided for in the CARES Act.

I am very pleased to be joined today by two outstanding lawyers who practice in the areas of Medicare reimbursement and regulatory matters. Liz Elias from our Indianapolis office and Lori Wink from our Milwaukee office. To give you an idea of where we’re headed today, Liz is going to walk you through the accelerated payment program. Lori is going to talk about the $100 billion in healthcare funding provided for in the CARES Act and then I’m going to discuss what might come next in a Phase 4 bill or as we discovered in the last 12 hours… 24 hours what might come as early as this week.

When we’re done, we hope you’ll know what actions you should be taking now and what steps you should take in the future and with that, I will turn it over to Lori. Lori.

Lori Wink: Thanks John. Without stating the obvious, we’re here today because expenses at health care organizations are increasing as they’re preparing for the COVID surges in treating patients. We see expenses increasing across the boards for our clients and at the same time there’s a significant disruption to non-emergent clinical services because there is cancellations and postponing of non-essential elective surgeries and procedures and clinical visits.

What we’re hearing across the country is about where… there’s a 40% decrease in these types of services being provided. One client we talked to, that was about a 200 bed hospital was losing on average about $4 million a week as a result of lost revenue and some critical access hospitals we’re talking to are seeing about a 70% decrease in this type of revenue and services because there’s no surge or cases yet in that case… cases related to COBIT in those situations but they still have the decline in revenue.

There are a number of relief funding opportunities available. In here we’ve listed 12 of the options. Today we’re going to talk about the accelerated payment program and the hundred billion in funding, but we do have full attendance that we’re releasing related to these other sources of funding and we do have additional webinars on these fundings and we’ve already had at least the first one with respect to telehealth. On the release funding strategies, what we’re recommending our clients do is they first establish a dedicated work group to really lead the funding sources and applying for the funding sources.

The next step would be reviewing these funding sources and we’re really making sure and encouraging our clients to monitor deadlines to understand the payment process with respect to these funding sources, whether it’s first come first serve under them. We need to get those applications in quicker and confirming eligibility. Then at the same time, you helped our organization’s need to track the expenses and the lost revenues related to COVID-19. There aren’t really specifics that we’re seeing on… at least in what we’re talking about today with respect to what those expenses in lost revenues are you. So you really need to create policies and procedures and just start that implementation process so you have something that’s defensible as time goes on.

Lori Wink: And then you need to submit the applications and the request as soon as possible, especially for those first come first serve and as those deadlines are approaching, then maintain the necessary documentation related to those expenses and then prepare for any reports that need to be submitted to the agencies that are releasing the funds and any subsequent audits that may occur in the future. The next slide is really just to emphasize those immediate stuff about identifying the source is in developing those policies and procedures for capturing the revenue and with that I’m going to turn it over to Liz.

Liz Elias: Thanks Lori. I’m going to talk about the accelerated payment program. Although it’s being only used a hundred times in the past five years, the CMS accelerated payment program is an existing program that allows CMS to accelerate and advance Medicare payments in order to provide emergency funding and address cashflow issues that might be caused by claims processing delays. It’s historically been used in response to natural disasters to accelerate cash flow.

However, under the CARES Act, the program has been greatly expanded. It’s essentially now a bridge loan that if it’s timely repaid can be interest free and likely won’t be viewed as debt on the balance sheet. It’s important to understand the eligibility for the accelerated payment program is not limited to hospitals. It can be accessed by other types of healthcare entities enrolled in the Medicare program as long as those providers have billed Medicare for claims within the last 180 days, they’re not in bankruptcy proceedings, they’re not under active medical review or any type of program integrity investigation, and they do not have any outstanding delinquent Medicare overpayments.

Perhaps most importantly, there is no specific need-based threshold to apply for the accelerated payment program. As far as what providers can request, most hospitals can request up to a 100% of the Medicare payment amount based on a six month look back period. However, critical access hospitals can request up to 125% of their payment amount for six months lookback period. Other types of providers and suppliers can request up to a 100% of the Medicare payment amount but only for a three month lookback period. These accelerated payment requests are submitted to the Medicare Administrative Contractors or in short the MACs.

It’s important to realize that the accelerated payment program as of this time are not in any way part of the $100 billion in the public healthcare and Social Services Emergency Fund that was also created by the CARES Act. The accelerated payment program is an entirely separate program. The applicable CMS guidance is not specific on how providers should calculate their accelerated payment amount or what types of documentation is required for that request. However, in speaking with various MACs over the past week and a half, we’ve gotten some information. CMS is providing the MACs a listing of the amount that each provider or supplier is able to obtain through this accelerated payment process, and that amount is the maximum that a provider can be approved for, the providers and suppliers can request less.

Generally speaking, these requests are going to be processed on a first in, first out basis and initially CMS stated that the MACs were going to issue payments within seven calendar days of receiving a request. However, in a briefing last evening, CMS Administrator Seema Verma stated that 17,000 accelerated payment applications have already been approved. Currently they are operating faster than the promised timeline. 25,000 applications have been received to date.

We wanted to give you an example of one of the accelerated payment request forms. This is WPS’s version of its form as of last Friday on April 3rd. Most MACs have revised their forms to simplify them and remove some of the certifications that are normally present under the regular accelerated payment program. However, we have confirmed with multiple MACs that they will accept all versions of the accelerated payment form whether it’s the CARES Act revision or the original form. Important to note on your form, when you’re completing your requests you should not include Part C or Medicare Advantage in your payment requests and we believe that the PSNR is a good source to determine what your request amount should be. There isn’t guidance out there specifically to point to a specific data source for you to use but the PSNR would be a good place to get that information.

Additionally, we’ve gotten information from the MACs encouraging us to tell providers that you would want to complete separate forms for sub units like inpatient rehab facilities and inpatient psych facilities and you’d want to send those in ideally in a separate emails so that they all have their own separate delivery timeline to the Mac. Likewise, if you bill under multiple MPIs, you would want to submit a separate request form for each NPI. Some MACs, they’re requiring these forms to be signed by an authorized official. If you’re not sure of who might be listed on your 855 as your authorized official, the person… if you complete a Medicare cost report, the person who signs your Medicare cost report is an authorized official and would be a good rule of thumb to use for signing these accelerated payment requests.

As far as the funds transmissions, these payments are coming through as regular Medicare remits. It is supposed to be the only thing that is on that remit and the remittance advice is somehow supposed to state that it’s the accelerated payment. The first payments went out overnight last Thursday on April 2nd. Anecdotally we’re hearing early reports that the initial payments are matching the requests or within the realm of reason. We do want to caution providers to watch the remittance advices carefully. We have received some information that CMS has given only three months of payment for some hospitals.

Similarly we are hearing that some critical access hospitals are not receiving the 125% payment amount. They’re receiving the 100% payment amount. These are being corrected as they’re being brought to the attention of the MACs and CMS is also working to update its list but if you do find yourself in a situation where the payment doesn’t closely match your requests, you might want to reach out to your MAC to see if you might fall into one of these outliers in the CMS data.

This is just an example just so you can see what the sort of processes and the requested amount and how they’re lined up with a payment and that this also has a critical access hospital and they’re just… you can see that as an example. As I said at the outset of my remarks, this is essentially a loan. It does have to be repaid. Currently the way the recruitment process is going to work for all providers regardless of what type of provider you are, the recruitment is going to start on day 120 after you’ve received your accelerated payments, and that recruitment is going to be against your paid claims.

Starting on day 120 you might experience a dip in your Medicare payments for some period of time while that recruitment is happening. For other providers besides hospitals, the recruitment period is going to last 90 days and on day 210 if there’s any remaining balance, providers will have 30 days to pay that outstanding balance or interest could start being assessed on day 241. There are supposed to be demand letters that are sent by the MACs, but we would recommend that providers calendar these dates so that you keep track of them internally just in case you don’t receive communication from your Mac. Just to recap, recruitment starts on day 120. Day 210 is your 30 day warning and on day 241 is when the interest could start to accrue.

Similarly for hospitals, they will also be assessed interest, but the interest for hospitals will not begin until one year after the accelerated payment is received. Likewise, you should get a demand letter from your MAC at the one year mark. The interest rate is currently set at 10.25%. The [HA 00:13:45] sent a letter earlier this week to advocate for a lower interest rate and possible loan forgiveness. However, in response to the HA’s letter from Monday, CMS Administrator Seema Verma made a statement that CMS is required to use that 10.25% interest rate because it is set by the treasury department and their hands are tied. We’ll have to watch and see if there are any further changes made to reduce that interest rate but right now CMS is saying that they don’t have the ability to adjust that interest rate.

Provide may also request an extended repayment plan if the recruitment process is not feasible for you at the 120 day timeline. There is a CMS manual process that outlines that and you should reach out to your MAC if you have any questions about the extended repayment plan, and just again to summarize for the hospitals, the deadlines would be day 120, interest day 365 would be your sort of warning and then you would have another 30 days. On day 395 is when your interest could start accruing and with that, I’m going to kick it back to Lori for some discussion on the $100 billion healthcare relief fund.

Lori Wink: The 100 billion in funding. Let me give you a roadmap as to where I’m going with this. First I’m going to start with a summary of the statute and the statute really is three pages of text in the CARES Act. There is no regulations and there’s no written guidance that we have with respect to the implementation of these laws. What we have are proposals from different associations that I’ll go through and arguably those are a little bit dated because then we’re going to go through the information that we have from CMS.

With respect to the hundred billion in funding, the CARES Act allows a hundred billion that’s available to providers until expended. That really makes it sound like it’s a first come first serve process, but we’ll wait and see how that works out and it’s for responses to the COVID-19 crisis. Is for eligible healthcare providers for healthcare related expenses and lost revenues that are attributable to the coronavirus. Now importantly in the CARES Act, eligible healthcare providers for purposes of this funding includes public entities, Medicare, Medicaid, enrolled suppliers and providers, for profit and non for profit entities that treat individuals with suspected or actual COVID-19. Now my slides aren’t working. There we go.

Importantly, this is not tied to the Medicare definition of a provider. It includes more than just hospitals and includes nursing facilities, physicians, ambulatory surgery centers, federally qualified health centers, rural health clinics, home health agencies and the list goes on. With respect to what’s eligible, again, it’s covered expenses and lost revenues. Now the CARES Act does stipulate that when they’re paying for the expenses or lost revenues, it cannot be reimbursements that are… expenses and revenues that are covered from other sources or other sources are obligated to pay for those.

The act also may include broad funding definitions. It includes alternative care sites, supplies including PPE, operational issues, surge capacity, et cetera, but because these are broad definitions, I really think that’s almost a good thing right now because as long as you can arguably and reasonably demonstrate that the expenses and the lost revenues are attributable to the COVID-19 crisis, I think there’s an argument that they’re covered under the funding source. Now, just to help put this in context, the Medicare budget in the last couple of years, it’s about 700 billion or this is a hundred billion, but it’s not just for Medicare. It includes Medicaid, uninsured population and private payers. It’s all the expenses and lost revenues related to this pandemic.

They’re also reporting in payment obligations or stipulations under the CARES Act. Providers are required to submit reports and maintain documentation to support the expenses and the lost revenues. Again we really encourage you to make policies and procedures or develop policies and procedures to help define those revenues and how they’re going to be captured and then maintain that documentation. It does say that HHS will provide these payments on a rolling basis so they’re not all at one and it does require that a provider apply for and justify the need for payment under the $100 billion which… I’ll come back to that point in a little bit, and then the options for HHS to provide those payments include prepayments, prospective payments and retrospective payments.

Some of the proposals that are out there, the first one, and again, I know these are a little bit dated. These were actually pretty good last week. Their proposal was to have a per bed payment for every hospital, would be 25,000 per bed, 30,000 for hotspots. If you had a 240 beds staffed hospital back they don’t define how bad is defined, we’re assuming it would be something akin to staffed bed versus licensed beds. You’d get about $6 million with a 25,000 per bed. Now in comparison, some hospitals that we’re talking to that are right around that 240 staffed bed level, they’re losing about $3 million at least a week in revenue from cancellations with no surges. It’s covering only about two weeks of just lost revenue, not the increase in expenses.

Some of these hospitals at about that size are applying for the accelerated payment through the accelerated payment program and they’re getting about 53 million. Some other proposals that are out there. There’s one proposal from about a group of nine hospital and physician groups and they propose to use the periodic interim payments for providers and suppliers. I think that one would be kind of difficult to implement. It’s tied to some older Medicare laws. It’s still used in some parts of the country but I think it was… just be more difficult, and then there’s the Federation of American Hospitals which they really advocate for most of the payments to be going to hospitals because they’re on the front line of treating patients in this crisis and they advocate for streamlined application process. It’s kind of a phased payment approach paying the hardest hit areas with immediate relief and then in June paying for March and April impacts and then final impacts in October.

But most importantly, we do have some reports out of Washington. The first report came out, I think it was late last week and the proposal was to pay hospitals and providers for uninsured patients that have the COVID-19. Under that proposal they would receive roughly the Medicare equivalent. In other words, what they get paid if they billed Medicare for the same service, and there would be a requirement that they don’t balance bill the patient, which would be the difference between the charges and what they ultimately got paid from Medicare. Estimates that have come out related to this type of funding, it would be about $40 billion or about 40% of the total that’s to be expended under this particular provision of the care act.

We do think that long-term it could impact the uncompensated care payments that hospitals get. We do think that would obviously be less impact than the direct payment through this a hundred billion in funding, but it would have some impact and it would also affect states disproportionately in hospitals… disproportionately depending on what did their uninsured patient population of, and then just yesterday, CMS Administrator Verma announced a second proposal where CMS would distribute about 30 billion this week yet and those distributions would be based on Medicare revenue and interestingly, the Medicare revenue is not defined, so we don’t know what the lookback period is to define how much different hospitals or different organizations would be getting and we also don’t know what types of revenue is Medicare or CMS would be looking at when they make that distribution, when they’re looking at hospitals and clinics and nursing facilities.

She did say that this would essentially be a grant with no strings attached, which is also interesting because the CARES Act did require, as I mentioned, that you maintain documentation to support the payments from the a hundred billion and it did require an application to justify the payment from the hundred billion source. We’ll see where that goes. How this is going to get paid as… what she said, it would be a direct deposit for Medicare providers as long as you’re set up for direct deposit. If you are not, it would require a simple registration and then the money would be released and she did say this was not a first come, first serve payment process so it’s available to all health care providers.

The other important thing to realize about this proposal is it’s really going to focus on organizations, healthcare providers with the majority of their payments or a lot of their payments coming from Medicare because it’s Medicare revenue. If it’s a provider with Medicaid private pay or a large uninsured population, those payments would be delayed and those would be released in the next round of funding and going to turn it over to John to see if has some input on these two proposals out of Washington.

John Williams: Thanks Lori. As regards the uninsured issue, just some background on the politics of all this. I’ve had a lot of people ask me, why are they going to use this uninsured money out of the $100 billion fund? And the answer is it’s pure politics. The administration does not want to reopen enrollment due to special enrollment under the Affordable Care Act. They have made a political decision that they are not going to breathe life into the Affordable Care Act if it can all be helped during this pandemic. That is the reason that they have decided that they were going to use this first chunk of money out of this fund to go to the uninsured.

John Williams: The other thing I would add too is… and Laura sort of touched on it. There was a Kaiser report that came out yesterday that shows that doing this… using this pool of money to fund payments for uninsured coverage could take up to somewhere between 14 to up to 40% of the 100 billion. That could end up being a really big chunk of change out of this fund, and as I’ll talk a little bit later, there’s already talk about getting more money into this. I think the only other thing I’ve got to add on that one Lori, is that what we’ve learned in the last 12 hours or so is that HRSA is going to be the entity responsible for making these direct deposits and HHS mentioned within the last couple of hours that they’ve already put out $1.3 billion to community health centers through HRSA so I think folks could probably look for those deposits to come from HRSA.

Lori Wink: Thanks John. Then the last thing that I just wanted to mention before turning it over to John again are, there are additional sources of payment both from the Medicare and the Medicaid program that are being just implemented through the regular payment process. For example, CMS has suspended the sequestration cuts from May 1st through December 31st and hospitals are receiving an additional 20% increase in payments when they treat patients with the COVID-19 diagnosis. They have eliminated the 15% reduction in clinical lab tests from 2021 to 2024 and I think that’s important because lab has just been such a focus with COVID-19 crisis, and as we move forward the CMS will cover… Medicare will cover the COVID-19 vaccine without any cost sharing once that vaccine is developed and they have delayed any Medicaid DSH cuts.

The last one I wanted to mention, and again, these are just examples, is that CMS and Congress has really expanded telehealth coverage for this crisis and I think it’s really important to think about that as we move forward because telehealth has been very limited in terms of coverage. Historically this has really expanded it and I think there’s some thought that that might become a permanent change and I know John has some thoughts on that he’d like to share also.

John Williams: I do, Lori. Thank you. Yeah. The telehealth stuff to me is fascinating because we’ve been following telehealth on Capitol Hill for years and years now and there’s always been a resistance to widespread expansion of the use of telehealth. Most people who are big advocates of telehealth believe that using telehealth will bring down the overall cost of healthcare. Well, the impediment in Washington for years has been the Congressional Budget Office and the Congressional Budget Office is the entity that’s responsible for determining what the cost of legislation is, and the folks that do healthcare at CBO, as we call it, they’ve always believed that the expansion of telehealth will cause an increase in Medicare spending because it will be so popular, it will be so utilized that it will actually cost the government more money than it’s going to save.

But, as I’ll mention again later, we are now in a world where no one is caring about cost and I think everybody is really seeing firsthand the benefits of telehealth and so I think you’re going to see a significant expansion that it’s here to stay as far as telehealth was concerned. Future legislation. In the days and weeks after CARES past we heard Democrats on the Hill saying that we’re going to need a fourth stimulus bill right away. From the minute the CARES passed they’re already advocating for a fourth. Republicans at that point were saying, no, you know what? We need to wait and see what impact CARES has on the situation before we go any further. That’s now changed. It’s completely changed and Republicans are on board and I think it’s really for two reasons.

One, the longer that it takes to get the money out the door the more pressure there is on law makers to do more. The other reason is that members of Congress are home with their constituents because Congress is in recess. They are at home getting an earful about website’s not working, about cheques not arriving and a whole host of other issues. On Monday of this week, house speaker, Nancy Pelosi hosted a conference call with all the democratic members of the house representatives and here’s what we know from people who are in that, who were part of that call and from other folks that we talked to on the Hill about what it is that Pelosi really laid out as what she wants for what we’re calling Phase 4 or the four stimulus package.

First thing is that the speaker Pelosi has said that the next bill is going to cost at least a trillion dollars. I think it’s going to end up being more than that. Congress never comes in below initial cost estimates of legislation and I think once that everybody starts getting their interests and their projects into a piece of legislation like that, we’re going to go way over a trillion dollars but what you’re seeing on the screen now is what Pelosi outlined on that call, and you’ve probably heard about some of these things already. You’ve probably heard, for example, that it’s taken up to eight weeks for paper checks to arrive from the IRS to those folks that don’t have direct deposit. So they feel like they need to do more about that.

The 350 billion for the Paycheck Protection Program isn’t enough. SBA is already… I mean, SBA was never built to distribute that much money this fast and we’ve also heard, I’m sure you have too, that banks are shutting off loans and so it’s been pretty much a hot mess and so they’re going to need more money for that. In the last 24 hours we’ve heard more about that and I’ll get to that in a moment as well. I like to highlight the OSHA protections here for a second. I had a health system that I spoke with earlier this week, ask me if there was any appetite on Capitol Hill to ease OSHA restrictions given everything that’s going on and the answer to that is actually no. The appetite on Capitol Hill at this point is to increase OSHA protections for medical personnel and for first responders.

Now, something else that’s happened in Washington is that the democratic leadership on healthcare related committees in the House and the Senate have made clear that they’re going to seek additional funds in the next bill that will cover things like those that you see here on the screen. Some of these are controversial. I spoke to the Democratic staff director for the house energy and commerce committee over the weekend and one of the things that he said to me is that the Democrats in the House and the Senate want to make the next stimulus bill as bipartisan as possible and if that’s the case then some of the stuff that you see on this screen are complete non-starters.

Again, this special enrollment period for the Affordable Care Act that Trump administration has already said that’s a nonstarter with them. I don’t think that’s really in the cards. The other thing… the main reason I was calling the staff director was the Medicaid Fiscal Accountability Rule or MFAR. Back when CARES was being negotiated towards the end, the House Democrats introduced their own alternative proposal, to CARES and one of the things that was included in that piece of legislation was a two year moratorium on finalization of MFAR and that never happened because that version of the bill was never adopted and I was calling to lobby for… not a moratorium, but for complete withdrawal of MFAR in the next piece of legislation and the response that I got was, look, this is going to be as bipartisan as possible so if we’re going to get enormous pushback on MFAR then we’re going to drop it and it’s not going to be in the next package.

We could see the withdrawal of MFAR, we could see a two year moratorium on finalization of MFAR or we could see nothing on MFAR. Now, where the white house has been on all of this is a bit vague in terms of what they want in a fourth bill. They’ve mentioned some hazard pay for workers, more aid to states and then as most of you may have seen yesterday Treasury Secretary Mnuchin formally requested another 250 billion for the Paycheck Protection Program. Now this is something that Congress is going to have to pass legislation in order to make happen. This is not before stimulus bill. This is an interim spending bill that the White House wants passed to bolster the Paycheck Protection Program, which is running low on money.

Now this morning, Senator Shuster and Speaker Pelosi released their counter proposal to this and part of that would include of the $250 billion that the city administration is asking for, is using 125 billion of it and channeling that money through community based lenders. It’s for farmers, minority and veteran owned businesses and other nonprofits in rural areas. Of note, they also asked for another $100 billion for hospitals, community health centers and health systems. The Democrat leadership on the Hill has already started advocating for more for hospitals because they know that this 100 billion is not going to be enough and they’re also asking for $150 billion more for state and local governments.

We’re talking about a half a trillion dollars when you total this up and this is not even before stimulus bill. This is an interim spending bill to get us over this hump until they can do a fourth bill. When we do get to a fourth stimulus bill, politics is going to again come into play in return for more money for businesses like insurance companies who got left out of the last one. Democrats on the Hill are going to want more direct payments to individuals, more worker protections and other things that are important to them. We’re going to get back to the typical legislative horse trading that goes on when legislation is passed. One of the things that Democrats are proposing is what they’re calling a hero fund and that would be hazard pay of about $13 an hour up to $25,000 limit for essential workers like janitors, store clerks, delivery drivers who have put their own personal safety at risk to help us all get through this.

As for outlook and timing for either an interim bill or a for spending bill Senator Mitch McConnell, the senate majority leader said yesterday that he wants the Senate to pass this interim spending bill tomorrow so that the House can have it by Friday. That’s a little bit easier for the Senate to do. Again, as I mentioned, Congress’s in recess. They’re going to try to hold these votes by voice vote. In the Senate they only have a hundred senators. It’s a lot easier to get a hundred senators on board with a voice vote than it is in the House.

It only takes one member to object to stop a voice vote and so again, managing a hundred is easier than managing it in the House where they have 435 members. If the House is going to act quickly and approve this interim spending on a voice vote, it’s going to take someone not objecting and if those of you who follow this stuff closely like I do you recall it with a third stimulus bill there was one Congressman from Kentucky who objected to doing it by voice vote and ended up having, having a lot of people fly back to Washington in order to vote.

I know they’re going to try to avoid that and try to do a voice vote and get that interim bill out by the weekend. Phase five. There’s going to be a Phase 5. Everybody’s sort of agreed upon that. There’s going to be more for healthcare in that, but we don’t know what that’s going to entail yet. Whatever doesn’t make it into Phase 4, it’s probably going to make it into Phase 5. For those of you who are interested in infrastructure matters, bridges, roads, those types of things, that is something that’s being talked about for Phase 5 and they’re talking about another trillion dollar bill in Phase 5.

Infrastructure has been talked about for years in Washington, but there’s never been the political will to make the tough choices on that, like increasing the gasoline tax and other taxes to pay for it but again, we’re in a world now where nobody really seems to be worried about how much this stuff costs and how it’s being paid for. On that happy note we’re right up against our time, maybe a little bit over. We’d like to thank you for joining us. We have resources available for COVID-19 funding and federal advocacy. You can see the names of those folks listed here on this slide. We will be sending out a PDF and recording of our webinar via email for those who are registered so look for those in your inbox.

Again, thank you for joining us. We hope you come away with a better grasp of what you should be doing right now and what to expect in the future. I know we’ve gotten a number of great questions. Please check out for more information there and some possible answers to your questions. Please contact us. You see our contact information right here, if we can help you navigate any of these issues. Thank you again for joining us. Everyone please stay safe and healthy as we all continue to navigate these unprecedented times. Good day everyone.

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

President/CEO 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.