March 18, 2020

Providers now have expanded ability to provide health care services via telemedicine or telehealth as part of the response to the COVID-19 novel coronavirus. On Tuesday, March 17, 2020, the Centers for Medicare and Medicaid Services (“CMS”) acted to expand Medicare’s telehealth benefits under additional Section 1135 waiver authority provided in the Coronavirus Preparedness and Response Supplemental Appropriations Act recently passed by Congress.

Under the waiver authority, telehealth services are no longer restricted to Medicare beneficiaries located in rural areas, and beneficiaries can receive telehealth services from a wide range of originating sites, including health care facilities, physician offices, rural health clinics, or even the beneficiary’s home. These services can be provided by a range of health care providers, including doctors, nurse practitioners, clinical psychologists, licensed social workers, and others, provided that the health care provider (or someone in their practice) has provided the patient a service payable under Medicare in the last three years. Telehealth services are reimbursed the same amount as if the services were provided in person, and providers can bill immediately for dates of services starting March 6, 2020. This expanded flexibility will help avoid the spread of COVID-19 by allowing Medicare beneficiaries to receive health care services through telehealth, without having to go to a doctor’s office or hospital. However, this added flexibility is not restricted to patients who have, or are suspected of having, COVID-19.

The waiver authority also broadens the available means of providing telehealth services, including through the use of telephones that have audio and video capabilities. In conjunction with this expanded capability, the HHS Office of Civil Rights has announced that it will exercise its enforcement discretion during the COVID-19 public health emergency and will not impose sanctions under HIPAA for providers who in good faith use certain non-public facing remote communications technologies which may not fully comply with the requirements of the HIPAA rules. These include Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, but do not include public-facing video communication applications such as Facebook Live, Twitch, and TikTok. Providers are encouraged to communicate to patients that these means of communication have privacy risks, and providers should enable all available encryption and privacy functions when using such applications.

Blue Cross and Blue Shield of Alabama (“BCBSAL”) has also expanded its coverage of telehealth services, and providers are encouraged to check with BCBSAL for updates to its telehealth coverage policies.

Health care providers with questions about how to implement this additional telehealth flexibility are encouraged to contact their health care regulatory counsel for guidance.

This News Item is intended only to provide an overview of the matters addressed herein and does not constitute legal advice.  If you have any questions regarding a specific arrangement with a physician or other health care provider, please seek appropriae legal counsel.