On March 17, 2020, the Centers for Medicare & Medicaid Services (CMS) announced it will temporarily pay clinicians who provide medically necessary telehealth services to Medicare beneficiaries residing across the country, effective retroactive to March 6, 2020 and continuing for the duration of the COVID-19 Public Health Emergency.

On March 13, 2020, President Trump announced an emergency declaration under the Stafford Act and the National Emergencies Act. Consistent with the emergency declaration, CMS is expanding Medicare’s telehealth benefits under the 1135 waiver authority and the Coronavirus Preparedness and Response Supplemental Appropriations Act.

Prior to the authorizing legislation, under federal statute, Medicare was generally only allowed to pay clinicians for telehealth services conducted in originating site (health care provider) locations and in rural or healthcare professional shortage areas (HPSAs). Meaning, with very limited exceptions, such as for in-home tele-dialysis services, the beneficiary was otherwise not allowed to receive telehealth services in their home.

A range of healthcare providers, such as physicians, nurse practitioners, clinical psychologists and licensed clinical social workers, will be able to offer telehealth to Medicare beneficiaries under this temporary expansion. Beneficiaries will be able to receive telehealth services in any healthcare facility including a physician’s office, hospital, nursing home or rural health clinic, as well as from their homes. 

Telehealth services will be paid under the Physician Fee Schedule at the same amount as in-person services. Medicare coinsurance and deductibles still apply for these services. However, the HHS Office of Inspector General (HHS-OIG) is providing flexibility for healthcare providers to be permitted to reduce or waive cost-sharing for telehealth visits paid by federal healthcare programs (if the health care provider chooses to do so).  Typically, waiver of cost-sharing is seen by the HHS-OIG as impermissible cost-shifting, and potentially in violation of the federal AntiKickback Statute.

Establishing a patient relationship between a clinician and patient is governed by state law. Pharmaceutical prescribing is governed by both federal and state law. In addition to pre-existing statutes and Ohio Medical Board rules, the Ohio Medical Board recently issued guidance in response to numerous inquiries on their telemedicine rules. 

In these unusual times, as health care providers continue to conscientiously care for patients in all health care specialties, we are available to answer questions that may arise, including with respect to launching and treating via telehealth and obtaining reimbursement for those services.

Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.