Reed Smith Client Alerts

As the United States continues to ramp up efforts to cope with the growing threat posed by COVID-19 outbreaks throughout the country, the federal government has implemented a series of measures designed to broaden access to telehealth services and contain the spread of the virus. Implicit in these measures is the notion that expanded availability of telehealth services will allow individuals to limit their exposure to COVID-19 by receiving care outside of densely populated health facilities.

Below is a summary of these latest developments and general legal considerations impacting telehealth providers and related companies in the United States. We expect additional changes to federal and state telehealth law and policies as the situation develops.

Authors: Paul W. Pitts Rebecca E. Dittrich James F. Hennessy Jamie Knauer Sonia T. Nguyen

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Expansion of Medicare Coverage and Payment for Telehealth Services

On March 6, 2020, Congress passed new legislation providing emergency funding for federal agencies to respond to the COVID-19 outbreak and including an expansion of Medicare coverage for telehealth services. The new law provides authority for the Secretary of the Health and Human Services (HHS) to waive certain Medicare telehealth payment requirements during the public health emergency declared by the Secretary of HHS on January 31, 2020.

Traditionally, the Centers for Medicare and Medicaid Services (CMS) has prohibited reimbursement for telehealth services provided to a Medicare beneficiary at home, except for “virtual check-ins.” Other covered telehealth services under current Medicare policy include remote monitoring services, physician interpretation of diagnostic tests, and other non-face-to-face care management, each of which may be billed as if the service was furnished in-person.

Now, Medicare originating site and geographic requirements are waived under the new law, allowing telehealth services to be provided regardless of where the beneficiary is located, including their residence. To qualify for the waiver, the telehealth provider must have furnished services to the patient within the previous three years or be in the same practice (i.e., as determined by tax identification number) of a practitioner who has treated the patient in the past three years. However, HHS has announced that it will not conduct audits to ensure that such a prior relationship existed for claims submitted during this public health emergency. All services currently eligible under the Medicare telehealth reimbursement policies are included in this waiver (e.g., office visits, psychotherapy, and consultations). The waiver, which is expected to be effective until the end of the public health emergency as declared by the Secretary of HHS, does not expand the list of eligible providers or the modalities that can be used to provide telehealth services.

Additional guidance on Medicare coverage and payment of telehealth services is available at cms.gov/medicare and CMS FAQs may be found at cms.gov/faqs.

OIG Permits Physicians to Reduce or Waive Cost-Sharing for Telehealth Services

The HHS Office of Inspector General (OIG) issued a policy statement permitting physicians and other practitioners to reduce or waive cost-sharing obligations, including coinsurance and deductibles, for telehealth services paid for by federal healthcare programs. Ordinarily, reductions or waivers of costs owed by federal health care program beneficiaries may implicate the federal anti-kickback statute.1 By contrast, OIG indicated in this policy statement that the agency will not subject physicians and other practitioners to OIG administrative sanctions for such reductions or waivers of cost-sharing obligations, particularly in light of increased demand for telehealth services resulting from the COVID-19 outbreak.