February 17, 2020

February 17, 2020

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Blog Series Part 2: CMS Proposed Rule on Policy and Technical Changes to the Medicare Advantage, Medicare Prescription Drug Benefit, Medicaid Fee-For-Service, and Medicaid Managed Care Programs for Years 2020 and 2021

Read Part 1 here.

As part of the proposed rule issued November 1, 2018 by the Centers for Medicare and Medicaid Services (“CMS”) regarding updates to the Medicare Advantage (“MA”) and Medicare prescription drug benefit programs, CMS addressed expanding the ability of MA plans to offer telehealth benefits to their enrollees. The proposed telehealth regulations come on the heels of the Bipartisan Budget Act of 2018 and implement § 50323 related to “additional telehealth benefits.”

Previously, under the original Medicare telehealth benefit, MA plans could only offer telehealth services through real-time communication technology that met the strict geography and patient setting requirements of § 1834 of the Social Security Act (42 U.S.C. § 1395m), or offer telehealth services that didn’t meet those requirements as “supplemental benefits,” generally paid for via supplemental enrollee premiums. However, the Bipartisan Budget Act created § 1852(m) of the Social Security Act (42 U.S.C. § 1395w-22(m)), which, beginning in plan year 2020, permits MA plans to provide these additional telehealth benefits and treat them as basic benefits for purposes of bid submission and CMS payment. The statute limits additional telehealth benefits to services which are benefits available under Medicare Part B and which have been identified for the applicable year as clinically appropriate to furnish through electronic information and telecommunications technology. Unlike the original Medicare telehealth benefit, additional telehealth benefits are not limited by the geography and patient setting restrictions. The Bipartisan Budget Act specifies that any capital and infrastructure costs relating to additional telehealth benefits would be excluded.

CMS’s proposed rule would implement § 50323, as well as define key terms like “additional telehealth benefits” and “electronic exchange” consistent with the statutory provisions. As the statute itself does not specify who would identify which services are clinically appropriate to furnish through electronic exchange, CMS proposes to authorize MA plans to make these determinations. The proposed rule also would continue authority for MA plans’ to offer supplemental benefits via remote access technology and/or telemonitoring for services that don’t meet the requirements of additional telehealth benefits. CMS believes implementing these regulations would “increase access to patient-centered care by giving enrollees more control to determine when, where, and how they access benefits.”

In addition to expanding the ability to provide telehealth services, CMS proposes a number of requirements MA plans would have to meet in doing so. For example, even with additional telehealth benefits, enrollees would have to have the choice between receiving services in-person or via telehealth, and CMS proposes requiring MA plans to use their Evidence of Coverage and provider directories to make enrollees aware of this option. The proposed rule includes requirements for providers of additional telehealth benefits for MA plans, including qualifications of such providers, such as selection and evaluation procedures and contractual licensing requirements, and requiring that additional telehealth benefits only be furnished by contracted providers. Under the proposed rule, MA plans would also have to make information about coverage of additional telehealth benefits available to CMS upon request. CMS also specifies that MA plans, in offering additional telehealth benefits, would have to continue to comply with all existing MA rules.

CMS seeks comments on its proposals, including implementation of the additional telehealth benefits and what items and services should be considered to be additional telehealth benefits.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Theresa E. Thompson, Sheppard Mullin Law Firm, Washington DC, Corporate Law Attorney
Associate

Theresa E. Thompson is an associate in the Corporate and Securities Practice Group in the firm's Washington, D.C. office.

Areas of Practice

Ms. Thompson's practice focuses on such areas as health care fraud and abuse, particularly in matters relating to the civil False Claims Act, physician self-referral (Stark law), and anti-kickback issues, as well as telehealth and telemedicine. She has experience in government investigations, litigation, and regulatory compliance, including in response to government...

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