Telemedicine and COVID-19: CMS Touts Virtual Check-Ins, Has Authority to Implement Telehealth Waivers

Introduction

The novel coronavirus disease ("COVID-19") continues to spread, with more than 1,200 cases confirmed in the United States to date. The United States Centers for Disease Control and Prevention ("CDC") and World Health Organization ("WHO") have recommended that healthcare facilities and professionals incorporate telemedicine services into COVID-19 response systems in order to prevent additional exposures, mitigate depletion of medical supplies, and prevent hospital and clinic overcrowding with low-acuity patients. To that end, President Trump signed the "Coronavirus Preparedness and Response Supplemental Appropriation Act, 2020" into law on March 6, 2020. The Act, which provides $8 billion in emergency funding for federal agencies to respond to the coronavirus outbreak, also allows HHS to waive certain Medicare requirements to expand reimbursement for telehealth services temporarily during the coronavirus public health emergency.

The New Legislation

Currently, Medicare will pay for certain telehealth services only if such services are provided to patients located in certain geographic areas, located at certain "originating sites," and using certain types of interactive audio and video telecommunications. Under the new Act, the secretary of HHS is authorized to waive temporarily the patient geographic and originating site restrictions to reimburse for any telehealth services furnished in an emergency area (currently, the entire United States). The Act also authorizes the secretary to waive regulatory restrictions on using a "telephone" as an interactive telecommunications system (so long as the telephone has audio and video capabilities that are used for two-way, real-time interactive communication). 

Such waivers would authorize Medicare payment for telehealth services provided via smart phone to Medicare beneficiaries located in their homes. Given that CDC now recommends that individuals over 60 years of age isolate at home in order to avoid community exposures and because the vast majority of COVID-19 hospitalizations and deaths have occurred in this age group, the impact of such waivers has the potential to be far-reaching. Notably, however, the Act authorizes waiver of these restrictions only for telehealth services provided by health care providers who either: (i) have furnished paid Medicare services to the patient within the previous three years; or (ii) are in the same practice of a provider who furnished paid Medicare services to the patient within the previous three years (referred to as "qualified providers").

CMS Press Release

HHS and CMS have not yet acted to implement the waivers authorized under the Act. Rather, on March 9, 2020, three days after the Act was signed into law, CMS issued a press release, entitled "Telehealth Benefits in Medicare are a Lifeline for Patients During Coronavirus Outbreak," in which it highlighted the Medicare program's existing telehealth benefits and coverage for virtual check-ins. According to the press release, the virtual check-ins, which were introduced as part of the CMS CY 2019 Physician Fee Schedule, allow Medicare beneficiaries who are looking for advice about symptoms to call their doctor and receive medical advice about whether they need to see their doctor in person. These check-ins are billable services that are "available right now to patients and their physicians" and provide flexibility to patients "who are concerned about illness to remain in their home avoiding exposure to others." The press release also refers to CMS' March 5, 2020, Fact Sheet regarding coverage and payment related to COVID-19, which describes existing coverage for telehealth services (including existing geographic and originating site requirements) and communication-based technology services, such as virtual check-ins. 

Virtual Check-Ins

Effective January 1, 2019, the CMS CY 2019 Physician Fee Schedule expanded coverage for certain "communication technology-based services." CMS does not consider these services to be statutory "telehealth services," and accordingly, the restrictions for reimbursement, such as the geographic and originating site limitations, do not apply. For example, Medicare currently provides coverage for brief, non-face-to-face virtual check-ins with a patient via communication technology to assess whether the patient's condition necessitates an office visit. In order to be eligible for Medicare coverage, such services:

• Must be performed by a physician or other provider who can report evaluation and management ("E/M") services.
• Must be provided to an established patient.
• Cannot originate from a related E/M service provided within the previous seven days, nor lead to an E/M service within the next 24 hours or soonest available appointment.
• Are intended to cover (and are paid at a rate to cover) 5-10 minutes of medical discussion.
• May be performed via audio-only, real-time telephone interactions or synchronous two-way audio interactions enhanced with video or other kinds of data transmission.
• Must be provided to patients who have verbally consented to using virtual check-ins prior to the patient using the service.

As noted in the Fact Sheet, Medicare also pays for patients to communicate with their doctors without going to the doctor's office using online patient portals. The communications can occur over a seven-day period and are billed using CPT codes 99421-99423 and HCPCS codes G2061-G206, as applicable. 

Implications

Medicare coverage for virtual check-ins may be helpful in paying for some remote services offered to patients suffering from new symptoms of respiratory illness. However, several factors may limit widespread coverage. First, virtual check-ins may only be reimbursed if provided to "established patients" of the provider conducting the virtual check-in. This limits the ability of patients to receive remote clinical services through providers with whom the patient has not established care even though such providers may be more available to provide services. Second, virtual check-ins are only intended to cover (and are only paid at a rate to cover) 5-10 minutes of medical discussion and may not be appropriate for complete medical evaluations for new respiratory symptoms. And finally, to the extent a virtual check-in results in an in-person follow-up visit (for example, if a patient requires triage to a higher level of care as a result of the virtual check-in), no separate payment may be made for the virtual check-in. 

If adopted, the waivers authorized by the Act could enable a wider range of remote services to be paid for by Medicare. For example, a more complete medical evaluation may be provided (and paid for) as a "telehealth service." Similarly, the limitation on payment for virtual check-ins that lead to a follow-up visit do not apply to telehealth services. Notably, however, even with the waivers authorized under the Act, telehealth services are only eligible for Medicare reimbursement if provided by providers and practice groups who have a previous relationship with the patient.