October 22, 2020

Volume X, Number 296


October 22, 2020

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October 21, 2020

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October 20, 2020

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Congress Loosens Telehealth Reimbursement Restrictions in Response to Coronavirus, but State Law Practice Requirements Remain

Telehealth is going to play a critical role in the delivery of care in the coming weeks and months as health care providers respond to the COVID-19 pandemic. As the CDC and other public health agencies continue to recommend social distancing and self-quarantine after exposure, telehealth is a vital tool for getting both sick and healthy individuals access to health care services they need if in-person services are not necessary. The use of telehealth services should help alleviate the ever-growing pressures on health care systems as they respond to the outbreak.  In light of these benefits, the Emergency Appropriations Bill passed by Congress last week includes provisions that allow the Secretary of Health and Human Services (HHS) to lift certain restrictions that are currently required for Medicare reimbursement of telehealth services.  These restrictions, which HHS can waive for Medicare covered telehealth services, include the following:

  • Originating Site. Medicare reimbursement rules require the patient to be located in a rural area at a designated “originating site.” The Emergency Appropriations Bill allows HHS to lift both restrictions so that patients do not have to be in rural areas and can be located anywhere, including in their own home.
  • Technology Modality.  Medicare currently requires real-time, audio and video technology for telehealth services to be reimbursable. The Emergency Appropriations Bill clarified that services can be provided via a smartphone, provided that it has both audio and video capabilities.

These changes to Medicare’s reimbursement rules, combined with more liberal coverage under most state Medicaid programs and commercial insurance plans, are expected to result in increased use of telehealth in the months ahead. Some states are taking additional action to loosen restrictions for telehealth reimbursement by Medicaid and/or commercial insurers, like Massachusetts. On March 15, 2020, Massachusetts issued an order requiring commercial insurers to cover medically necessary telehealth services in the same manner as in-person services and to reimburse providers for telehealth services at the same or higher rates as in-person services. The order also prohibits commercial insurers from requiring prior authorization for telehealth services.

Although Congress has given HHS the ability to loosen restrictions for Medicare reimbursement for telehealth services, providers who offer telehealth services should remember that other state and federal practice laws still apply. Generally, providers must make sure to establish a physician-patient relationship, be licensed in the state where the patient is located, and obtain sufficient information to make a diagnosis or treatment recommendation. State and federal laws may also restrict how providers issue prescriptions via telehealth. For more information, see the video below or click here.


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About this Author

Sarah Beth S. Kuyers, Mintz Levin, nonprofit affiliation lawyer, health care systems attorney

Sarah Beth’s practice involves a variety of regulatory, transactional, and enforcement defense matters for clinical laboratories, hospitals, pharmacies, insurers, and other health care clients.

Sarah Beth routinely advises clients on a wide variety of federal and state health care regulatory issues, including anti-kickback and self-referral laws, licensure and scope of practice rules, telemedicine, certificate of need applications, food and drug law, and HIPAA compliance. She also handles licensure and regulatory filings for clinical laboratories and other health care providers....

Ellen L. Janos, Health care attorney, mintz levin law firm,Digital Health PBMs & Pharmacies Hospitals & Health Systems Post-Acute & Long-Term Care Retail & Urgent Care Physician Organizations

Ellen utilizes her in-depth knowledge of health care regulation to assist clients with government audits and investigations, M&A and financing transactions, and corporate compliance activities. She also provides strategic advice to traditional health care providers, investors, and start-ups on telehealth initiatives as well as the traditional practice of medicine across multiple states. Ellen often comments on developments in telehealth, HIPAA, and the corporate practice of medicine. As an assistant attorney general for the Commonwealth of Massachusetts, Ellen represented state agencies responsible for health care reimbursement, licensing, and Medicaid fraud prosecutions. She has successfully argued two cases before the US Supreme Court.

Ellen specializes in providing regulatory and strategic advice to health care providers and payors of all types, including hospitals, managed care organizations, long-term care facilities, pharmacies, pharmaceutical and device manufacturers, telemedicine providers, and urgent care and retail health clinics. She also represents companies doing business with, and investing in, health care providers. One of Ellen’s provider clients was quoted saying, “I can bring her any issue or question and she is able to quickly provide insights and answers that are practical and business-oriented. She is a true health care expert.”

Ellen's practice focuses on Medicare, Medicaid, and third-party payor audits and investigations, the development of corporate compliance programs, and hospital/physician relationships, including compliance with the state and federal anti-kickback laws and the Stark Law. In addition, she advises clients on how to deploy telemedicine and internet based health initiatives, electronic health records, and how to address HIPAA privacy and security matters.

Before joining Mintz, Ellen was an assistant attorney general for the Commonwealth of Massachusetts, representing state agencies responsible for health care reimbursement, licensing, and Medicaid fraud prosecutions.

Ellen served as a member of the advisory committee that worked with the Massachusetts Health IT Council on the development and implementation of the statewide HIT strategic plan and health information exchange.

She has written about and speaks frequently on state and federal telehealth laws, the corporate practice of medicine, compliance programs, board governance matters, HIPAA privacy and data security, technology and health care, and hospital/physician relationships. Ellen has successfully argued two cases before the US Supreme Court.