COVID-19 and Telehealth Updates

New York State, the Federal government, and State and Federal departments and agencies have issued several orders and declarations over the past few weeks to address concerns regarding the spread of COVID-19 and the implementation and expansion of telehealth services. The information below is a summary from New York’s Department of Financial Services (“NY DFS”), as well as coverage of telehealth under Medicare, Medicaid, and private insurance.

With respect to all of the telehealth requirements, please keep in mind that patient consent (at least verbal) requirements and privacy/security requirements remain, although some requirements have been lessened as a result of the COVID-19 pandemic.

Update from the New York Department of Financial Services

NY DFS adopted an emergency regulation which requires New York State insurance companies to waive cost-sharing for in-network telehealth visits. This means that deductibles, copayments, and coinsurance costs are waived. This waiver also applies regardless of whether the telehealth visit is related to COVID-19.

For more information, see the Press Release issued by NY DFS on March 17, 2020, available at: https://www.dfs.ny.gov/reports_and_publications/press_releases/pr20203171

Medicare

Previously, Medicare covered certain services delivered via telehealth to patients in designated rural areas when the patient travels to an eligible originating site—clinic, hospital, and other specific medical facilities—to receive the service. With the passing of HR 6074, the Coronavirus Preparedness and Response Supplemental Appropriations Act, there is a temporary expansion of telehealth services and coverage.

Effective March 6, 2020 and for the duration of the COVID-19 Public Health Emergency, the originating site location restrictions have been removed, meaning that patients can now receive telehealth services at their homes. Services that are normally provided in-person, with some limitations, are covered when provided by telehealth (note: telehealth visits are classified as a separate modality compared to virtual check-ins and e-visits, see more on this below).

For telehealth visits, an interactive audio and video telecommunications system with real-time communication must be utilized. This means that a mobile device with both audio and video capabilities, and communication platforms such as FaceTime and Skype, in addition to the typical telehealth platforms, can be utilized.

Eligible distant site providers include physicians, nurse practitioners, physician assistants, nurse midwives, certified nurse anesthetists, clinical psychologists, clinical social workers, registered dietitians, and nutrition professionals. Normally, for telehealth visits, a prior relationship must be established between the provider/practice and the patient. However, the Department of Health and Human Services instituted a policy of enforcement discretion for Medicare telehealth services delivered without a prior established relationship between provider/practice and the patient.

While beneficiaries are responsible for deductible and coinsurance payments attributed to telehealth visits, the Department of Health and Human Services/Office of Inspector General is allowing providers/insurance companies to reduce or waive cost-sharing for telehealth services provided under a federal healthcare program. Providers are normally subject to sanctions under the Anti-Kickback Statute and Civil Monetary Penalties Law, which prohibit inducements to beneficiaries, however, there is now discretion to waive these normal cost-sharing payments.

Though not expanded by HR 6074, there are a few alternatives for technology-enabled services that providers and patients can utilize:

• Virtual Check-Ins: These are communications that are not related to a medical visit within the past 7 days and that do not lead to a medical visit within 24 hours or the next available appointment. Virtual check-ins are permitted if a provider or practice has an established relationship with a patient and the modalities are expanded for brief, communications between provider and patient. Communications can occur by telephone, audio/video, secure text messaging, email, or use of a patient portal. Additionally, there are no restrictions on the patient’s or provider’s location.

• E-visits: These are patient generated inquiries using the patient portal. The patient must have an established relationship with the provider or the practice. There are no restrictions on the patient’s or provider’s location. There are different codes for both providers who can independently bill Medicare for evaluation and management and for those who cannot.

For information relating to billing codes for telehealth visits, e-visits, and virtual check ins, please see the following: https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet

For Medicare Telehealth Frequently Asked Questions (published March 17, 2020), please see the following: https://www.cms.gov/files/document/medicare-telehealth-frequently-asked-questions-faqs-31720.pdf

Medicaid

Pursuant to Executive Order 202 which declared a State of Emergency in New York, telehealth has been expanded to include telephone conversations where the face-to-face visits are not recommended and the patient can appropriately be evaluated and managed by telephone. The following are Medicaid covered services provided by telehealth: “assessment, diagnosis, consultation, treatment, education, care management and/or self-management of a Medicaid member.” (see page 4 of the NYS Department of Health’s Medicaid Update on the Comprehensive Guidance Regarding Telehealth including Telephonic Services During the COVID-19 State of Emergency, Volume 36, Number 5, available at https://www.health.ny.gov/health_care/medicaid/program/update/2020/index.htm) (last updated March 23, 2020) (hereinafter “DOH Medicaid Update”).

Originating sites (the site where the patient is located) and distant sites (the site where the provider is located) are also unrestricted during the State of Emergency and can be at any location.

For information related to Billing Rules for Telehealth Services, please see the DOH Medicaid Update, available at https://www.health.ny.gov/health_care/medicaid/program/update/2020/index.htm

Private Insurers

Following from guidance from CMS, the New York Department of Health, and NY DFS, many private insurance companies are issuing updated requirements and policies so that their members can receive expanded services through telehealth.

As a few examples:

• UnitedHealthcare is waiving originating site restrictions, allowing participating and non-participating providers to receive reimbursement for telehealth claims, waiving pre-existing patient relationship requirements, among others. For more information regarding UnitedHealthcare’s Provider Telehealth Polices and Frequently Asked Questions, please see: https://www.uhcprovider.com/en/resource-library/news/provider-telehealth-policies.html

• Excellus BlueCross BlueShield is expanding its reimbursement rate for telehealth telephone and online evaluation services for commercial and Medicare members, allowing expanded communication technologies, including telephone and video modalities conducted on mobile devices, providing reimbursement for telephonic E/M services where medically appropriate to do so by telephone (note: to established patients), waiving cost-sharing for all telehealth visits for the duration of the state of emergency, among other expansions. For more information regarding Excellus BlueCross BlueShield’s telehealth updates, please see: https://provider.excellusbcbs.com/coronavirus

• Aetna is expanding no-cost telemedicine benefits to all members with telemedicine benefits for services rendered by in-network providers, co-pays are waived for virtual check-in and remote evaluation for commercial members, and coverage is also expanded for Medicare members. For more information on Aetna’s updated policies, please see: https://www.aetna.com/health-care-professionals/provider-education-manuals/covid19-letter.html

DISCLAIMER: Requirements vary based on the insurance company (e.g., coverage for out-of-network providers, reimbursement for audio/visual or audio-only services, requirement of a pre-existing patient relationship), and also within the different plans of each insurance company (commercial, Medicaid and Medicare Advantage, etc.).

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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2020 Law Offices of Pullano & Farrow PLLC

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