By Jeffrey H. Brochin, J.D.
An interim final rule issued in response to the urgency of the public health emergency (PHE) created by COVID-19, to allow changes to payment rules that previously inhibited the use of technology to furnish services remotely.
CMS has announced an interim final rule intended to provide needed flexibility to respond effectively to the serious public health threats posed by the spread of the 2019 Novel Coronavirus (COVID-19). Among the changes to the Medicare regulations are provisions for interim payment rules so that physicians and other practitioners, home health and hospice providers, inpatient rehabilitation facilities, rural health clinics (RHCs), and federally qualified health centers (FQHCs) are allowed broad flexibilities to furnish services using remote communications technology to avoid exposure risks to health care providers, patients, and the community.
Declaration of PHE. On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization (WHO) declared the outbreak a "Public Health Emergency of International concern" (PHEIC), and on January 31, 2020, HHS declared a PHE for the United States to aid the nation’s healthcare community in responding to COVID-19. On March 11, 2020, the WHO publicly characterized COVID-19 as a pandemic, and on March 13, 2020 President Trump declared the COVID-19 outbreak a national emergency.
Regulatory agencies respond. As the healthcare community has undertaken to implement and establish recommended infection prevention and control practices, regulatory agencies under appropriate waiver authority granted by the PHE for the COVID-19 pandemic declaration are also working to revise and implement regulations that work in concert with healthcare community infection prevention and treatment practices.
Based on the current and projected increase in rate of incidence of the COVID-19 disease in the US population, and observed fatalities in the elderly population, who are particularly vulnerable due to age and co-morbidities, and additionally, based on the impact on health workers who are at increased risk due to treating the population, CMS believes that certain Medicare and Medicaid regulations that may offer providers flexibilities in furnishing services to combat the pandemic should be reviewed and revised as appropriate. CMS has addressed some of those regulations in this interim final rule.
Payment for Telehealth services. Section 1834(m) of the Social Security Act specifies the payment amounts and circumstances under which Medicare makes payment for a discrete set of services, all of which must ordinarily be furnished in-person, when they are instead furnished using interactive, real-time telecommunication technology (‘telehealth’ services.) When furnished under the telehealth rules, many of these specified Medicare telehealth services are still reported using codes that describe "face-to-face" services but are furnished using audio/video, real-time communication technology instead of in-person contact. The list of these eligible telehealth services is published on the CMS website at https://www.cms.gov/Medicare/Medicare-General-Information/Telehealth/index.html.
Services not requiring patient presence. In contrast, Medicare pays separately for other professional services that are commonly furnished remotely using telecommunications technology, but that do not usually require the patient to be present in-person with the practitioner when they are furnished. Those services, including remote physician interpretation of diagnostic tests, care management services and virtual check-ins among many others, are considered physicians’ services in the same way as services that are furnished in-person without the use of telecommunications technology. They are covered and paid in the same way as services delivered without the use of telecommunications technology, but are not considered Medicare telehealth services and are not subject to the conditions of payment under section 1834(m) of the Act.
Expansion of Telehealth services. On March 17, 2020, CMS announced the expansion of telehealth services on a temporary and emergency basis pursuant to waiver authority added under section 1135(b)(8) of the Act by the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (Pub. L.116-123, March 6, 2020). Starting on March 6, 2020, Medicare can pay for telehealth services, including office, hospital, and other visits furnished by physicians and other practitioners to patients located anywhere in the country, including in a patient’s place of residence. In the context of the PHE for the COVID-19 pandemic, CMS recognizes that physicians and other health care professionals are faced with new challenges regarding potential exposure risks, for people with Medicare, for health care providers, and for members of the community at large. For example, the CDC has urged health care professionals to make every effort to interview persons under investigation for infection by telephone, text messaging system, or video conference instead of in-person.
To facilitate the use of telecommunications technology as a safe substitute for in-person services, CMS’s interim final rule has, on an interim basis, added many services to the list of eligible Medicare telehealth services, eliminating frequency limitations and other requirements associated with particular services furnished via telehealth, and clarifying several payment rules that apply to other services that are furnished using telecommunications technologies that can reduce exposure risks. Accordingly, CMS has added numerous services to the list of telehealth services on the basis that there is a patient population that would otherwise not have access to clinically appropriate treatment.
Although the interim final rule was issued March 24, 2020 and bears an applicable date of March 1, 2020, it will not be published until April 6, 2020. To be assured consideration, public comments must be received by CMS no later than 5 p.m. on June 1, 2020. In commenting, commenters should refer to file code CMS-1744-IFC.
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