January 30, 2023

Volume XIII, Number 30


January 30, 2023

Subscribe to Latest Legal News and Analysis

Coronavirus Prompts Telehealth Changes For Medicare

In response to the COVID-19 pandemic the federal government has taken important steps to expand telehealth coverage for Medicare beneficiaries. The changes allow Medicare beneficiaries to receive a broader range of healthcare services through interactive telehealth communication with a healthcare provider – thus promoting social distancing to protect both patients and healthcare providers from unnecessary exposures.  

The Coronavirus Preparedness and Response Supplemental Appropriations Act, which provides $500 million for an emergency waiver expanding Medicare coverage for telehealth services, implements three important changes to existing Medicare telehealth coverage: 

  • Telehealth services are covered regardless of where beneficiaries are located. Previously, Medicare only covered telehealth services for those who were located in a health professional shortage area or a non-urban area. Coverage now extends to telehealth services provided anywhere a beneficiary is located, even if it is not in a health professional shortage area or non-urban area.

  • Telehealth services may be initiated from any location via smartphones with “audio and video capabilities that are used for two-way, real-time interactive communication.” Previously, beneficiaries were required to go to a medical facility and use an interactive communication device in order for telehealth visits with a remote provider to be covered. Telehealth coverage now extends to services provided via smartphone in a beneficiary’s own home. 

  • Telehealth covered services now include all types of visits, including specialized office visits, mental health counseling, and preventive health screenings. Previously, covered telehealth visits were limited to routine office visits in special circumstances. Importantly, the expanded telehealth coverage is not restricted to visits regarding COVID-19 diagnosis or treatment. 

While the act states that covered telehealth services must be delivered by a provider or member of the provider’s practice who has treated the patient within the past three years, the Centers for Medicare & Medicaid Services (CMS) has issued guidance stating that the Department of Health and Human Services will not conduct audits to ensure that such a previous relationship existed for claims submitted during the COVID-19 pandemic. 

Healthcare providers and practitioners will also not be subject to sanctions for reducing or waiving cost-sharing for telehealth services provided to federal health program beneficiaries during the COVID-19 pandemic. The HHS Office of Inspector General (OIG) has confirmed in a March 17, 2020 memorandum that if a provider or practitioner chooses to waive or reduce cost-sharing for telehealth services, the OIG will not bring an enforcement action under either the federal anti-kickback statute or the beneficiary inducements civil monetary penalty statute for waiving or reducing such cost-sharing. 

In addition, the HHS Office for Civil Rights will exercise enforcement discretion and waive penalties for HIPAA violations against healthcare providers that perform telehealth visits via non-encrypted technology such as smartphones, FaceTime, or Skype, during the COVID-19 pandemic. 

Several private payers have already announced similar expansions to coverage of telehealth services. Many of these payers have waived co-pays for telehealth visits. Some states’ Medicaid programs may soon choose to follow suit by easing restrictions on telehealth service coverage.

© 2023 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 78

About this Author

Laura D. Seng, Barnes Thornburg Law Firm, South Bend, Healthcare Attorney

Laura Seng is a partner in Barnes & Thornburg LLP’s South Bend, Indiana, office and is the chair of firm's national Healthcare Department. Ms. Seng concentrates her practice in regulatory compliance, transactional matters and medical-legal business issues for healthcare entities and individual providers. She is listed as a notable healthcare lawyer by Best Lawyers in America® and was recognized by her peers in Indiana Super Lawyers® as a “Rising Star” in healthcare law.  

Ms. Seng represents hospitals, physicians, multi-specialty clinics and healthcare...

Julie Veldman, Health Care Attorney, Barnes Thornburg Law Firm, Columbus

Julie Veldman Harris is an attorney in the Columbus office of Barnes & Thornburg LLP, and a member of the firm’s Healthcare and Corporate departments as well as the Data Security and Privacy Practice Group. Ms. Harris delivers guidance on a wide-range of healthcare and general corporate legal issues, concentrating her practice on representing healthcare providers in all of their transactional and healthcare regulatory law needs.

Ms. Harris counsels businesses and organizations in relation to a variety of healthcare services and providers,...

Heather Delgado Healthcare Attorney

Healthcare providers depend upon Heather Delgado for her commitment to responsiveness and practical legal advice. Heather focuses on finding the right solution for her clients. She is valued for her ability to overcome the obstacles her clients face and for her skill in applying complex laws and regulations to their business practices.

Heather’s experience includes the representation of healthcare providers, including hospitals, health systems, specialty hospitals, ambulatory surgery centers, multi- and single-specialty medical practices, and a wide variety of healthcare...