On January 31, 2020, the Secretary of the U.S. Department of Health and Human Services (HHS) declared a public health emergency in response to the COVID-19 pandemic. A number of federal government agencies have since taken action to temporarily relax certain regulatory requirements that will allow healthcare providers and payors to address the COVID-19 emergency expeditiously and efficiently through the use of telehealth. Similar actions are also being taken at the state level. Below is a summary of the more significant measures that have been taken to promote the use of telehealth in combatting COVID-19 in the United States. These measures will be in effect for the duration of the public health emergency.

Waived Practitioner Licensure Requirements

On March 13, CMS announced a waiver of the requirement that healthcare practitioners providing telehealth services must be licensed in the state where the patient is located in order to obtain Medicare and Medicaid reimbursement. As a result, a practitioner licensed in one state may now be paid by Medicare and Medicaid for a telehealth visit with a patient located in a different state.

CMS’s waiver is limited to reimbursement and does not waive long-standing state laws requiring those practicing medicine to be licensed in that state. However, states, including California and Florida, are beginning to waive in-state licensing requirements for healthcare practitioners licensed in other states who are assisting with COVID-19 response efforts.

Increased Coverage of Telehealth Services by Third-Party Payors

Medicare: Medicare coverage of telehealth services before the COVID-19 national health emergency was largely limited to patients in designated rural areas and those already receiving care in certain healthcare facilities. In response to the emergency, Medicare will pay for telehealth services furnished to Medicare beneficiaries on and after March 6 in broader circumstances. Namely, Medicare will pay for office, hospital, and other visits furnished via telehealth to all Medicare beneficiaries, not just those with COVID-19. Payment for telehealth visits will be the same amount as that for in-person visits. Additionally, on March 17, the OIG announced that it is allowing healthcare providers to reduce or waive cost-sharing for telehealth visits paid for by federal healthcare programs, such as Medicare.

Medicaid: Even before the COVID-19 national health emergency, states have had the flexibility to cover telehealth services through Medicaid. Some states, such as California, are further expanding access to telehealth for this population. Additionally, the Families First Coronavirus Response Act, which was signed by the president last night, temporarily increases federal funding to the states in connection with Medicaid coverage enhancements.

Medicare Advantage/Part D Plans: On March 10, CMS announced that Medicare Advantage and Part D plans have the flexibility to waive certain requirements to help prevent the spread of COVID-19, including expanding access to telehealth services and waiving certain cost-sharing for COVID-19 tests and treatments.

Commercial Health Plans: Many commercial health plans have announced that they are providing additional coverage for telehealth services and are waiving patient cost-sharing for such services.

Relaxing of HIPAA Requirements to Enable Telehealth Services to be Delivered Through More Readily Available Means

On March 17, OCR announced that it would exercise its enforcement discretion and waive potential penalties against covered healthcare providers for noncompliance with HIPAA in connection with the good faith provision of telehealth services during the COVID-19 national health emergency. Thus covered healthcare providers with audio or video communication technology may use any non-public-facing remote communication product that is available to communicate with patients, such as Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, to provide telehealth services to patients.

Electronic Prescribing of Controlled Substances

Generally, under the Controlled Substance Act, healthcare providers may prescribe controlled substances only for patients they have evaluated in person. There are limited exceptions to this rule, including when the secretary of HHS has declared a public health emergency. In response to the COVID-19 national health emergency, the DEA has issued guidance stating that DEA-registered healthcare providers may issue prescriptions for controlled substances to patients during a telehealth visit, using an audio-visual, real-time, two-way interactive communication system.

Additional Information

If you have any questions regarding this client alert, or if you would like assistance with your organization’s response to the COVID-19 national health emergency, please contact a member of Venable’s Healthcare or Employee Benefits and Executive Compensation Practice Group.