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Telehealth: 5 Key Takeaways from the Coronavirus Spending Bill

“Caution is appropriate. Preparedness is appropriate. Panic is not.” (~ U.S. Surgeon General Dr. Jerome Adams, commenting on the coronavirus)

The recent coronavirus outbreak is gaining world attention as it spreads, with increasing focus on outbreaks and containment efforts throughout the United States. On March 6, 2020, President Trump signed into law an emergency $8.3 billion spending bill passed by Congress that would give the Secretary of the Department of Health and Human Services (HHS) the authority to temporarily lift certain restrictions on Medicare telehealth coverage to assist in the efforts to contain the virus. Companies in the telehealth industry should consider the following key takeaways and insights on how the recent legislation could impact their industry.

The Telehealth Services During Certain Emergency Periods Act of 2020 (the TSDCEPA) is part of the larger bipartisan Coronavirus Preparedness and Response Supplemental Appropriations Action 2020, and provides authority to HHS to waive certain existing limitations on Medicare coverage and payment for telehealth services furnished to Medicare beneficiaries—clearing the way for vulnerable Medicare beneficiaries to receive care in their homes.  The care can relate to any condition, not just coronavirus-related conditions, and all currently approved telehealth codes can be utilized, as appropriate. This means that telehealth could be utilized not only for initial evaluations to determine if coronavirus testing is necessary, but also for ongoing health care treatment related to other conditions so patients can remain in their homes. 

The key takeaways are as follows:

  1. Waiver of Originating Site Requirement. Medicare’s originating site requirement—requiring telehealth services be performed in a qualifying rural area at one of eleven qualifying originating sites—may be lifted, allowing for telehealth services to be provided to patients at any location within the emergency area and during the emergency period. Most other requirements under existing Medicare telehealth statutes and regulations, as well as applicable state law telehealth requirements (e.g., licensure), will remain in place unless further waivers are implemented.  Thus, for example, facility fees cannot be charged unless the patient receives the service at one of the eleven qualified originating sites.  For various reasons, operationalizing the billing for services under the waiver and determining beneficiary eligibility may be challenging for some provider types.  
  2. Who Can Perform the Telehealth Services? The eligible telehealth services can only be performed by a “qualified provider” as defined by the TSDCEPA.  Qualified provider is defined to include the same list of permitted physicians and practitioners authorized under existing telehealth statutes and regulations. However, the physician or practitioner rendering telehealth services to a patient under the waiver, or someone within the rendering physician or practitioner’s practice (under the same tax identification number), must have furnished an item or services to the patient at issue for which payment was made under Medicare in the preceding 3-year period for the service to be reimbursable under the waiver. 
  3. Telehealth Can Be Provided via a Smartphone. The TSDCEPA clarifies that telehealth services can be provided via phone, but only if the phone has audio and video capabilities that can be used for two-way, real-time interactive communication. 
  4. When Will the Waiver Be Effective? As of now, HHS has not made a certification to Congress activating the waiver of the aforementioned telehealth requirements.  If the waiver is certified, HHS has the option of implementing the waiver retroactive to the commencement of the declaration of the emergency period.  The declaration of a public health emergency was made on January 31, 2020, when HHS declared that a national public health emergency relating to coronavirus existed as of January 27, 2020.  
  5. Uncertainty as to Duration and Narrow Scope.  The duration of the waiver period is uncertain.  Providers will need to closely track any changes to the availability of the waiver and take this into consideration when deciding whether to offer telehealth services under the waiver. Additionally, the TSDCEPA only provides authority to HHS to certify the TSDCEPA waiver with respect to the current Coronavirus Public Health Emergency and any extension of its covered period.  Thus, the telehealth waiver under the TSDCEPA could not be activated in response to other public health emergencies or disaster declarations.    

For additional web-based resources available to health care providers regarding evolving changes to Medicare policies, you may wish to visit Medicare’s current emergencies webpage, which includes important billing FAQs.  Also, to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the sites provided by the CDC and the World Health Organization

Companies in the health care industry should take additional steps now to mitigate the risk of suffering negative impacts from the coronavirus. Foley will continue to keep you apprised of relevant coronavirus-related developments.

© 2020 Foley & Lardner LLPNational Law Review, Volume X, Number 72


About this Author

Rachel Goodman Health Care Attorney Foley Lardner Tampa
Senior Counsel

Rachel B. Goodman is a senior counsel with Foley & Lardner LLP, and a member of the firm’s Health Care Practice Group and national Telemedicine & Digital Health Industry Team. Hardworking, creative and dedicated to her clients, Rachel’s practice focuses on representing a wide array of clients nationally with transactional and related regulatory issues in the health care industry including health care providers, physician groups, hospitals, health systems, pharmacies, laboratories, home health agencies, skilled nursing facilities, assisted living facilities, rehabilitation agencies...

Emily Wein Health Care Lawyer
Of Counsel

Emily H. Wein is of counsel and a health care lawyer with Foley & Lardner LLP, and member of the firm’s national Telemedicine & Digital Health Industry Team. Emily understands and identifies with the business and strategic goals of virtual care and digital health companies. She delivers practical legal guidance molded to accomplish each individual client’s unique operational goals. Emily works with a diverse bench of organizations – including large interdisciplinary hospital systems, skilled nursing facilities, multi-state clinical practices, and fast-moving entrepreneurs. Emily’s energy and enthusiasm mirrors that of her health innovation clients where she consistently drives to improve some of the most important and unmet health needs in the industry today, particularly women’s health, substance use disorder, mental health, and preventative wellness.

Emily wields notable depth on advising telemedicine and digital health clients on the highly technical, traditional healthcare regulatory issues of Medicare and Medicaid enrollment, billing and coding, interjurisdictional claims submission and reassignment, compliance with Conditions of Participation, and medical staff credentialing and privileging.

Real-World Industry Knowledge

Having earned both a law degree and an MBA, Emily understands the importance of practical business perspectives while maintaining that sense of urgency essential to the success of any innovative health technology offering. Whether an emerging start-up entrepreneur with a novel or breakthrough idea or an established health system with many constituents to align, Emily works efficiently and effectively to meet the distinctive requirements of each organization. Additionally, she spent five years as in-house counsel at a nationally-known academic medical center health system, where she led the development of its virtual care service programs, including tele-stroke and tele-cardiology, and had primary legal responsibility for fraud and abuse compliance of all Medicare enrollment and physician-hospital contracting arrangements.

Thought Leadership

  • Original member of the Clear Health Quality Institute’s Telehealth Accreditation Standards Committee, where she helped develop the standards and requirements for telehealth companies seeking CHQI accreditation.

  • Helped create the Maryland Telehealth Alliance; a mission-driven organization to advance telehealth law in the State of Maryland. She serves as its Chief Legal Officer.

  • Serves on the Advisory Board of Nest Collaborative, a telehealth provider specializing in women’s and pediatric services.

  • Co-authored The Telehealth Law Handbook: A Practical Guide to Virtual Care.

Thomas B. Ferrante, Foley, Healthcare Regulatory Lawyer, Transactional Matters Attorney
Senior Counsel

Thomas (T.J.) Ferrante is an associate and health care lawyer with Foley & Lardner LLP, where he focuses his practice on a wide range of transactional and related regulatory issues for health industry clients, including for-profit and not-for-profit hospitals and health systems, multi-specialty physician practice groups, and long-term care providers. Mr. Ferrante has experience with a variety of transactions, including mergers and acquisitions, joint ventures, strategic affiliations, obtaining and maintaining tax-exemption, employment contracts and leases, and other...

Sunny Levine Health Care Lawyer Foley Lardner

Sunny J. Levine is a health care lawyer with Foley & Lardner LLP, and member of the firm’s Telemedicine & Digital Health and Health Care Industry Teams working with hospitals and health systems, physician practice groups, and technology companies across the country. Sunny’s practice focuses on federal and state regulatory compliance and business issues in the health care industry. She also works with companies offering highly regulated consumer products, such as medical marijuana and alcohol beverages.

Telemedicine & Digital Health Experience

Sunny’s practice...

Ann Marie Uetz, Foley Lardner, Debtor Representation, Bankruptcy Lawyer

Ann Marie Uetz is a partner and trial attorney with Foley & Lardner LLP, where she represents clients in a variety of industries in all aspects of their contracts and business disputes. She also represents debtors, creditors and secured and unsecured lenders in all facets of restructuring. Ms. Uetz focuses her practice on business litigation and bankruptcy, two of Foley’s practice areas recently ranked by U.S. News—Best Lawyers® as “national First-Tier” practices in recognition of excellence in client service.