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Volume XI, Number 55

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Telehealth and Federal and State Government Responses to the Coronavirus Pandemic

As the coronavirus strain (COVID-19) continues to spread, the government, insurance companies and medical providers are rushing to find paths to more efficiently and effectively provide care for those in need. The Centers for Disease Control and Prevention (“CDC”) warns that the virus is spread mainly from person to person and that people are most contagious when they are most symptomatic.

Given the contagious nature of the virus, telehealth is quickly gaining popularity among (i) patients who believe they need medical care but do not want to risk coming into contact with others; (ii) physicians and other providers who can avoid being exposed to the coronavirus while still being able to treat their patients; and (iii) hospitals, urgent care centers, and other facilities by allowing them to conduct an initial assessment of patients, allocate limited treatment resources, limit direct personal interactions with patients who may have the virus, and direct patients to locations that have the requisite resources to provide care.  Not only are healthcare providers able to see patients for initial consultations, but many hospitals and providers are even using telehealth service carts to check in on infected patients (whether at home or in the hospital) so that they can manage care for their patients without risking exposure to the virus.

Recently, the President approved the congressionally backed Coronavirus Preparedness and Response Supplemental Appropriations Act which includes an additional $8.3 billion emergency funding to combat coronavirus. The emergency fund allocates $2.2 billion to  health agencies to prepare for and help prevent the spread of the virus in the United States, and approximately $3 billion for vaccine research.

Recognizing that the elder population consists of high-risk patients, Congress allocated $500 million to cover costs for telemedicine services furnished to Medicare patients under Medicare Part B. In addition and as a part of this legislation, Congress authorized CMS to waive or modify some of Medicare’s telehealth requirements that might otherwise limit reimbursement for telehealth services.

Specifically, the legislation allows CMS to cover telehealth services furnished in any emergency area during an emergency period to a Medicare beneficiary by a qualified provider, without regard to the originating site requirement and the restriction on the use of telephones, so long as the telephone used has audio and video capabilities used for two-way, real-time interactive communication.[1]

While the above change authorizes CMS to greatly expand Medicare telehealth coverage, this expansion may be limited by the law’s definition of a “qualified provider.” Under the legislation, a “qualified provider” would be a physician or practitioner who, either individually or through their practice (defined by TIN), rendered Medicare-covered services to the Medicare beneficiary within a 3-year period ending on the date such telehealth service was furnished.  Therefore, telehealth services furnished to a new patient, a previous but no longer current patient, or an existing patient who is a new Medicare beneficiary – would not be covered by Medicare.  As of March 14, 2020, CMS had yet to act upon its authority to implement this expansion of telehealth coverage.

Further, on March 13, 2020,  President Trump announced in a press conference that he will be issuing an emergency declaration that will give Health and Human Services very broad authority to waive regulatory requirements.  Specifically, HHS would be empowered to “temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule throughout the duration of the public health emergency declared in response to the COVID-19 outbreak”, with advance written notice to Congress.   HHS may use this authority to waive, among many requirements, telehealth coverage limitations beyond the waiver contemplated in the Coronavirus Preparedness and Response Supplemental Appropriations Act.

In addition, some state governors, departments of health, and Medicaid administrative agencies are taking similar actions to suspend current telehealth limitations and/or expand Medicaid coverage of telehealth services, including for new patients, during the virus outbreak.

We will continue to monitor CMS’, HHS’, and state governments’ responses to COVID-19 and their impact on telehealth services and coverage.

FOOTNOTE

[1] Currently, Medicare covers most telehealth services only when a beneficiary is at a qualifying “originating site” – a health care facility or doctor office in a county outside a Metropolitan Statistical Area or in a rural Health Professional Shortage Area, and when provided via an “interactive telecommunications system”, which excludes telephones.. See 42 CFR 410.78(a)(3), (a)(4), (b)(1), (b)(3), (b)(4).

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Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 77
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About this Author

Matthew Shatzkes Attorney New York Sheppard Mullin
Partner

Matthew Shatzkes is a partner in the Corporate Practice Group in the New York office of Sheppard Mullin and is a member of the firm’s healthcare practice team.

Areas of Practice

Matthew provides strategic, regulatory, compliance, and transactional advice to all manner of health care clients, including health systems, hospitals, academic medical centers, long-term care providers, ambulatory surgery centers, diagnostic and treatment centers, physician practices, digital health companies and investors....

212-634-3062
Partner

Mr. Paddock's practice primarily involves healthcare fraud and abuse matters, particularly those relating to civil False Claims Act, physician self-referral (Stark Law), and anti-kickback issues. He often advises clients on compliance and transactional matters, the conduct of internal investigations related to potential fraud and abuse issues, and responding to and defending against government anti-fraud and abuse enforcement efforts and regulatory inquiries, including qui tam and government allegations of False Claims Act violations. He is an active member of...

202-747-1954
Associate

Ms. Kraus focuses her practice on representing healthcare entities in regulatory compliance matters.  Ms. Kraus advises clients on compliance with federal and state fraud and abuse laws, assists clients in responding to government investigations, and represents clients in False Claims Act litigation.  Ms. Kraus also assists clients with regulatory due diligence in transactional matters, and through advocacy with federal and state regulators, and leverages her background in health policy to help clients maximize opportunities in the changing healthcare landscape...

202-747-2645
Kimberly Rai Lawyer Sheppard Mullin NYC
Attorney

Kimberly Rai is an attorney in the Corporate Practice Group in the firm's New York office.

As a member of the firms Due Diligence Team, Ms. Rai supports the Corporate and Finance & Bankruptcy Practice Groups on various matters relating to mergers and acquisitions, venture capital and private equity.

Prior to joining the firm, Ms. Rai worked in house as Assistant General Counsel for a retail energy supplier. She has experience in retail energy compliance and general corporate matters

Education

  • J.D., Fordham University School of Law
  • ...
212-653-8195
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