Cares Act And Interim Final Rules–continued Focus On Telehealth To Relieve Burdens On Providers

This is one of a series of articles on the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) signed into law on March 27, 2020 (Pub. L. 116-136).

The CARES Act took another step forward in easing the burdens on providers and helping stop the spread of COVID-19 with several provisions enhancing the ability for health care to be delivered via telehealth. The portions of the Act related to telehealth are touted as the first bipartisan effort to lifting barriers to the delivery of services via telehealth. While the measures are in place only during the period of the declared national emergency, some opine these measures may pave the way for expanded use of telehealth for the next decade. We summarize the key telehealth provisions that were included in the CARES Act. 

Elimination of Established Patient Requirement

Section 3703 of the Act codified prior waivers issued by the Centers for Medicare & Medicaid Services (“CMS”) that waived the established patient requirement for using telehealth. Patients will no longer be required to have seen the provider (or a provider in the same group practice with the same specialty/subspecialty) in the past three years. Providers can now use video/audio and audio only technologies to provide services to new patients. Keep in mind, however, that this provision does not apply to other virtual services such as eVisits or virtual check-ins and that the Act applies only to Medicare patients. Some states, such as Nebraska, have more stringent requirements on the use of certain technologies such as audio only services. Without additional waivers not yet received at the time of writing, audio only (telephone) services could not be used for new patients. 

FQHCs and RHCs Authorized to Use Telehealth

Prior to the Act, federally qualified health centers and rural health clinics could not be the distant site (where the practitioner is located) for a telehealth service. Section 3704 of the Act now allows providers located within a FQHC and RHC to provide services to beneficiaries via telehealth. Payment amounts for telehealth in FQHCs and RHCs are still to be determined with the direction that any payment policies can be established through program instruction.

Hospice and Dialysis 

Section 3706 of the Act now allows physicians and nurses recertifying hospice patients to do so via telehealth during the COVID-19 emergency period. The telehealth visit will satisfy the face-to-face requirements of the recertification process. Section 3705 of the Act also waives the requirement for face-to-face visits between home dialysis patients and physicians.

Home Health Visits

Under Section 3707 of the Act, the U.S. Department of Health & Human Services (“HHS”) is directed to consider ways to encourage the use of telecommunication systems, including remote patient monitoring systems, consistent with the plan of care for the individual.

Interim Final Rule to Implement Additional Waivers

While the ink on the CARES Act was barely dry, CMS released an Interim Final Rule on March 31, 2020 to implement previously announced and additional telehealth waivers retroactive to March 1, 2020 (“Medicare and Medicaid Programs; Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency”). Under the Interim Final Rule, CMS implements in rule form numerous payment flexibilities to enhance health care delivery via telehealth. The Rule answers a few questions that providers had been asking and waiting for confirmation. Some of the key provisions of the Rule that expanded the prior-announced waivers include:    

• CMS clarified that providers can render these telehealth services from their home without reporting their home address on their Medicare enrollment.
• Physicians and practitioners who bill for Medicare telehealth services are instructed to report the place of service code that would have been reported had the service been furnished in person. This change recognizes the costs that remain even though the service was not furnished in person and allows the provider to be paid at the facility fee rate.
• The Rule adds a list of additional services that can be provided via telemedicine, including emergency department visits, with a process established for the public to provide ongoing requests for adding additional services. 
• Virtual check-ins can be provided to both new and established patients. It is unclear whether eVisits were extended to new patients. 
• Additional remote monitoring services for both new and established patients can now be provided. 
• An expanded class of providers including licensed clinical social workers, clinical psychologists, physical therapists, occupational therapists, and speech language pathologists can provide eVisits when the visit pertains to a service that falls within the benefit category of those practitioners. 

The Interim Final Rule is packed with several other topics, both related and unrelated to COVID-19. While some questions remain, in evaluating the measures a health care provider might take without confirmation of a regulatory waiver or clear guidance, CMS notes in the Interim Final Rule that its “goal during the [public health emergency] for the COVID-19 pandemic is to reduce exposure risks to the novel coronavirus for practitioners and patients and to increase access to services by eliminating as many obstacles as possible to delivering necessary services.” This Interim Final Rule takes a big step forward in that effort. It will be telling after the public health emergency ends, how many of these new payment rules CMS will decide to retain. The comment period to the Interim Final Rule closes on June 1, 2020.