A restriction within the current waiver authority leaves many companies unable to help

When the Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020 was signed into law on March 6th, much of the media attention centered on the $8.3 billion in funding to combat the pandemic.  Another provision in the Act that permits a waiver of geographic and originating site restrictions on telehealth services for the elderly garnered less attention but could have a very important role to play in combatting COVID-19 — particularly if the waiver authority is further expanded by Congress.

By way of background, the Balanced Budget Act of 1997 authorized Medicare reimbursement for telehealth services starting in 1999; however, the statute sets forth significant restrictions on how and where telehealth services may be provided. Under current law, telehealth services for Medicare beneficiaries will only be reimbursed for those beneficiaries located in a rural or underserved area, and the beneficiary must go to a designated “originating site” such as a Rural Health Clinic to receive the services; they cannot be provided in a patient’s home except in very limited circumstances.

However, 42 U.S. Code § 1320b–5 gives the Secretary of Health and Human Services the authority to waive requirements typically in place for certain Medicare services during times of national emergency. At the request of healthcare industry associations, Congress added language to the Coronavirus Preparedness and Response Act (the “Act”) that extends this authority to telehealth services during a national emergency. Unfortunately, the Act also added a definition of the term “Qualified Provider” as it relates to telehealth that limits the Secretary’s waiver authority to encompass only those physicians or practitioners who have provided a Medicare covered service to the patient sometime during the last three years or, alternatively, is part of the same practice with a physician or practitioner who has done so.  This last requirement of the Act may unduly restrict access to telehealth services for Medicare beneficiaries during the coronavirus pandemic and should be revisited as soon as possible in future legislation relating to the COVID-19.

What will the current Emergency Telehealth Waiver allow if implemented?

On Friday, March 13, 2020, the President officially declared a state of national emergency due to the COVID-19 pandemic, setting the wheels in motion for Secretary Azar to use his authority to waive telehealth restrictions within the parameters of the Act. As of the date of publication of this article (March 15, 2020), Secretary Azar has not yet exercised his waiver authority for telehealth services or any other requirements for items or services provided to Medicare beneficiaries. Should he choose to do so, Secretary Azar would have the ability to waive the following requirements relating to telehealth only for practices who have provided a Medicare covered service to an individual patient within the last three years:

• Telehealth services will no longer be limited to Medicare beneficiaries located in a designated rural health professional shortage area

• Medicare beneficiaries need not go to a designated “originating site” in order to receive telehealth services

• A telephone that has both audio and video capability (e.g. a mobile phone) may now be deemed as meeting the requirements of “two-way real-time interactive communications” for purposes of telehealth

Limiting the waivers to the relatively small number of physician practices serving Medicare populations that already have the knowledge and infrastructure in place will significantly limit the ability to establish a successful COVID-19 Telehealth Program. Stakeholders — including healthcare providers, telehealth companies, and Medicare beneficiaries — should urge Congress to remove this limitation from the Secretary’s waiver authority as soon as possible.

What would an effective COVID-19 Telehealth Program look like?

Assuming that Secretary Azar uses his emergency authority to waive Medicare telehealth restrictions, what telehealth will look like during the COVID-19 National Emergency will depend in large part on 1) whether Congress expands his waiver authority as it relates to telehealth; 2) what aspects of the waiver authority he intends to exercise; 3) clarity of the guidance CMS issues to providers and telehealth companies relating to implementation of a COVID-19 Telehealth Program. In order to maximize our chances of success in combatting the coronavirus pandemic, Secretary Azar, CMS Administrator Seema Verma, and CMS staff should implement a two-pronged approach to a COVID-19 Telehealth Program along the lines of the following:

• Allow existing telehealth companies to provide, without charge during this time of National Emergency, telehealth technology/platforms and education for practices/practitioners who do not currently use telehealth in their practices.

A 2019 survey by the American Medical Association showed that only 15 percent of physicians were using telehealth in any way to provide care to their patients. This means that the vast majority of medical practices — most of whom are treating Medicare beneficiaries — do not currently utilize telehealth platforms and are not familiar with “best practices” for telehealth visits. CMS should issue guidance making it clear to telehealth companies and practitioners alike that providing/accepting free access to telehealth platforms and education/training sessions does not put them at risk of violating the fraud and abuse laws. In fact, CMS should take steps to encourage physician practices to work with companies to implement a telehealth program as soon as possible.

• Allow telehealth companies with existing provider networks in place to provide telehealth visits to Medicare beneficiaries utilizing the providers currently in their network.

Depending on how far and fast the coronavirus spreads, it may well be that the above steps won’t suffice to handle the volume of patients requiring medical services during the state of emergency. Assuming Congress acts to remove the “Qualified Provider” limitation in the Secretary’s waiver authority, Secretary Azar should also implement the following:

• A waiver of the Medicare Conditions of Participation requirements for providers of telehealth services. Currently, many providers within a telehealth company’s network of providers are not Medicare participating providers. However, these physicians and practitioners are experienced in providing high quality telehealth services to patients and should be permitted to do so in this time of crisis. As of this updated writing, Secretary Azar has acted to waive the Medicare Conditions of Participation.

• A waiver of the requirement that Medicare participating providers be enrolled in the State in which a patient is located, assuming they hold equivalent licensing in another State and are not affirmatively excluded from practice in a State. As of this updated writing, Secretary Azar has acted to waive this requirement, and a number of states have already acted to waive their licensure requirements.

• A directive that waiver of the originating site and geographic restrictions applies not only to Medicare beneficiaries seeking counseling/treatment related to COVID-19, but to any medical service they may need. With the spread of the corona virus, we face a very real possibility of overwhelming the capacity of our medical facilities. In order to avoid this potentially devastating outcome, we must expand remote/virtual access to healthcare practitioners for all types of illnesses, from the common cold to managing a chronic condition.

Administrator Verma and CMS should issue clear, concise guidance to all stakeholders as soon as possible highlighting the above and directing stakeholders to monetary and educational resources for implementing a telehealth program.

What will an Emergency Telehealth Waiver mean for telemedicine companies going forward?

In light of the current restrictions on telehealth services for Medicare beneficiaries, most older adults who rely on traditional Medicare for their health coverage have not had the opportunity to experience the convenience and benefits that telehealth has to offer. If Secretary Azar and CMS lay the groundwork for implementation of a successful COVID-19 Telehealth Program as described abover, there will be real momentum towards permanently changing the law that originally imposed the telehealth restrictions for Medicare beneficiaries.  While the bi-partisan Connect for Health Act, introduced in the House and Senate this session, is a step in the right direction, it does not go far enough, allowing a patient’s home as the originating site only for mental health services and requires an analysis of the geographic and originating site restrictions before further changes are passed legislatively. Older Americans are a powerful voice for change and, if the telehealth waiver program is successful, that voice will demand far-reaching change to law and policy sooner rather than later. Medicare Advantage plans currently reimburse for telehealth services without geographic or originating site restrictions, and many commercial payers do the same. While Medicare frequently leads the way on healthcare innovation, a failure to do so in telehealth may mean more beneficiaries move to Medicare Advantage in the near future.

Please read about Remote Patient Monitoring technologies/services, Virtual Check-ins, and e-Visits and consider the role these services — which are affirmatively NOT considered telehealth and therefore are NOT subject to geographic and originating site restrictions — can play in combatting coronavirus. Contact us for assistance in implementing these programs.

Check our Resources for combatting coronavirus with telehealth and remote patient monitoring.

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