On March 17, 2020, acting under the Coronavirus Preparedness And Response Supplemental Appropriations Act (the “Act”) and section 1135(b) of the Social Security Act, the Secretary waived certain telehealth reimbursement requirements for Medicare reimbursement. Many states followed suit by permitting healthcare providers in in other states to practice telehealth without having a license and without first developing a provider-patient relationship in person. Some states have laws requiring that commercial plans reimburse telehealth services just as they would if the services were delivered in a face-to-face setting. All states require Medicaid plans to reimburse for telehealth visits. There has never been a better time to test the ROI on telehealth.

Maximizing the ROI will require an understanding of federal and state regulations and emergency measures, billing requirements and options, and payor concerns. Below are descriptions of the changes and bullet point summaries of the recent guidance and some advice based on experience advising many clients on telehealth issues over many years.

Some commercial payors, including Aetna, Cigna, and BlueShield BlueCross have announced that they will make telehealth more widely available. Along with reviewing any contracts providers have with payors, providers should review the wording of their offers. For example, Aetna contracted providers should not expect payment for services provided via email or other store-and-forward technology; Aetna is offering to waive co-pays for “real-time virtual visits offered by in-network providers in participating plans.” In Tennessee, United will pay for telehealth rendered in people’s homes and even for some services rendered by phone.

• Under the Act and 1135 waivers, Medicare patients may receive covered telehealth services in their homes and in rural and urban areas alike, and many existing state laws require commercial and Medicaid plans to pay for visits via telehealth to homes and the homeless wherever they are located.

The most significant change in Medicare telehealth reimbursement is that Medicare will pay for telehealth services delivered to beneficiaries’ homes during the public health emergency (“PHE”). CMS recognized “the urgency to expand the use of technology to help people who need routine care, and keep vulnerable beneficiaries and beneficiaries with mild symptoms in their homes while maintaining access to the care they need.” With the goal of “limiting the exposure to other patients and staff members” to “slow viral spread,” the Secretary and CMS broadened access to Medicare telehealth services so that beneficiaries can receive a wider range of services without having to physically visit a healthcare facility or office. Thus, CMS suspended the requirements that beneficiaries must be located in rural Health Professional Shortage Area or in a county outside of a Metropolitan Statistical Area and receive services in specified facilities called “originating sites,” namely physician/provider offices, hospitals, CAHs, RHCs, FQHCs, Hospital-based or CAH-based Renal Dialysis Centers, SNFs, or Community Mental Health Centers.

Many state laws require commercial and Medicaid plans to cover telehealth delivered to people’s homes. For example, New York law provides: “A health plan shall not exclude from coverage services that are provided via telehealth if they would otherwise be covered under a policy, [except from providers that are non-contracted and] may subject the coverage of a service to reasonable utilization management and quality assurance requirements that are consistent with those established for the same service not delivered via telehealth.” NY Insurance Law Article 32, § 3217-h & NY Insurance Law Article 43 § 4306-g. Under Georgia law, insurers may not “exclude a service for coverage solely because the service is provided through telemedicine services and is not provided through in-person consultation or contact between a health care provider and a patient for services appropriately provided through telemedicine services.” Official Code of GA Annotated Sec. 33-24-56.4. California’s Health and Safety Code section 1374.13, which applies to commercial plan and Medi-Cal managed care plans, provides, in pertinent part:

(d) A health care service plan shall not limit the type of setting where services are provided for the patient or by the health care provider before payment is made for the covered services appropriately provided through telehealth, subject to the terms and conditions of the contract entered into between the enrollee or subscriber and the health care service plan, and between the health care service plan and its participating providers or provider groups, and pursuant to Section 1374.14.

These examples instruct providers to review their payor contracts for relevant provisions, including utilization management, quality assurance requirements, and terms regarding where patients may be located. In addition, we advise providers to document why the services are appropriately provided through telehealth, that the encounter is complete - with any suggested in-person visit in the future being for follow-up – and why the services were medically necessary.

• Payment should be the same whether services are provided via telehealth or in person.

CMS has been clear: “Medicare pays the same amount for telehealth services as it would if the service were furnished in person.” Of course, Medicare telehealth services, like all Medicare services, must be reasonable and necessary under section 1862(a) of the Act. During the PHE, documenting the medical necessity and reasonableness of the services and maintaining proof that services were delivered to covered beneficiaries may be more important than ever; MA plans and CMS contractors will carefully scrutinize bills for fraudulent submission. The same is true for commercial and Medicaid patients.

• Bill under the Physician Fee Schedule and check the CMS website for appropriate HCPCS codes and modifiers.

CMS maintains a list of services that are normally furnished in-person that may be furnished via Medicare telehealth. These services are described by HCPCS codes and paid under the Physician Fee Schedule. Note that providers who are underutilized could provide annual wellness services via telehealth.

CMS also provided specific guidance that makes billing and processing bills more simple: “The practitioner should report the place of service (POS) code that would have been reported had the service been furnished in person. This will allow our systems to make appropriate payment for services furnished via Medicare telehealth which, if not for the PHE for the COVID-19 pandemic, would have been furnished in person, at the same rate they would have been paid if the services were furnished in person.” However, modifier “95” should also be used to indicate the service took place through telehealth. According to the AMA:

Office-based physicians should use their usual place-of-service (POS) code to be paid at the non-facility rate for telehealth services and add modifier 95 to telehealth claim lines. Telehealth services billed using POS code 02 (telehealth) will be paid at the facility rate. … Code selection and documentation guidelines for office visits performed via telehealth will be based on physician time spent on the date of visit or medical decision-making (MDM). CMS will utilize the 2020 physician time and definitions of MDM.

Commercial plans may require the use of the telehealth POS code, 02 and/or 95 as applicable, and might even deny claims or seek recovery of alleged overpayments arguing that providers submitted false claims or misled the plans into believing the services were rendered in person. Providers should check with their contracted plans on this and other coding requirements before submitting bills for telehealth services.

• Distant site practitioners may furnish Medicare telehealth services from their homes, offices or medical facilities.

Having no credentialing requirements means the location of the practitioner is less important. CMS advised: “There are no payment restrictions on distant site practitioners furnishing Medicare telehealth services from their home during the public health emergency.”

As described above, practitioners should report the POS code that would have been reported if the visit had been in person. When practitioners are practicing from home, CMS instructed that they “should list the home address on the claim to identify where the services were rendered.” CMS further advised: “The discrepancy between the practice location in the Medicare enrollment (clinic/group practice) and the practice location identified on the claim (provider’s home location) will not be an issue for claims payment. Physicians do not need to update their Medicare enrollment file with their home address.”

• Telehealth-like services may be billable during the PHE.

CMS activated CPT codes 98966, 98967, and 98968, which describe assessment and management services conducted over the phone. A broad range of clinicians, including physicians, can now provide certain services by telephone to their patients (CPT codes 98966 -98968; 99441-99443).

A virtual check-in pays professionals for brief (5-10 min) communications that mitigate the need for an in-person visit. clinicians can provide virtual check-in services (HCPCS codes G2010, G2012) to both new and established patients. Virtual check-in services were previously limited to established patients.

Finally, licensed clinical social workers, clinical psychologists, physical therapists, occupational therapists, and speech language pathologists can provide e-visits. (HCPCS codes G2061-G2063).

State laws and payor contracts and websites should be consulted to determine whether these services are reimburseable outside of Medicare.

• CMS has removed frequency limitations.

CMS instructed: “To better serve the patient population that would otherwise not have access to clinically appropriate in-person treatment, the following services no longer have limitations on the number of times they can be provided by Medicare telehealth:

• A subsequent inpatient visit can be furnished via Medicare telehealth, without the limitation that the telehealth visit is once every three days (CPT codes 99231-99233);
• A subsequent skilled nursing facility visit can be furnished via Medicare telehealth, without the limitation that the telehealth visit is once every 30 days (CPT codes 99307-99310)
• Critical care consult codes may be furnished to a Medicare beneficiary by telehealth beyond the once per day limitation (CPT codes G0508-G0509).

State laws and payor contracts and websites should be consulted to determine whether frequency limitations apply during the PHE.

• The waiver of location requirements under the Act and 1135 obviates the need for credentialing and peer review.

An unspoken result of permitting reimbursement of telehealth delivered to patients’ home is the elimination of credentialing requirements. Absent the waivers, distant site practitioners would need to be credentialed by originating sites and undergo peer review as if they physically practiced at the originating sites. With homes replacing facilities, credentialing and peer review are unnecessary.

Commercial and Medicaid plans could deny claims for lack of credentialing where state laws or health plan guidelines require credentialing. Again, look before you leap.

• While synchronous video communication is still required for covered telehealth services, transmissions need not necessarily be secure.

The Act and 1135 waivers did not change the requirement that telehealth be delivered via synchronous real-time video communications. What the new 1135 waiver authorized was the use of telephones and other mobile devices that have audio and video capabilities for the furnishing of Medicare telehealth services during the COVID-19 PHE. While Medicare reimbursement was never technically dependent on the nature of the transmission, transmissions via apps like Facebook’s Messenger and Skype posed security risk under HIPAA, which CMS enforced along with the Office of Civil Rights (“OCR”). Thus, in response to the Secretary’s affirmation that mobile devices could be used to deliver telehealth services, CMS amended its regulations through the IFC to remove the potential perception of restrictions on technology that practitioners can use to provide telehealth services and HHS announced: “Effective immediately, the HHS Office for Civil Rights (OCR) will exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency.” OCR also named Facebook Messenger video chat and Google Hangouts video as apps that can be used without risk of penalty for noncompliance with the HIPAA Rules related to the good faith provision of telehealth during the PHE.

Many states require synchronous real-time video communications or permit commercial and Medicaid plans to require such communications. Providers should check relevant agency guidance, Executive Orders issued by state governors, and health plan requirements.

With regard to privacy and security concerns, providers can rely on OCR’s announcement for HIPAA-covered transactions, but state law must still be considered. In the majority of states, disclosures of patient name or first initial and last name together with enumerated factors such as financial information or an insurance identification number are reportable, although some also contemplate that such information was “compromised.” Again, providers should check their state agency actions in response to the PHE and Executive Orders.

State medical privacy laws should not affect reimbursement of commercial and Medicaid claims, but we recommend documenting what equipment is used for the telehealth visit for a host of reasons, including to meet payor demands for evidence of a synchronous transmission and/or valid patient authorization to receive services via telehealth, discussed below. We also recommend using devices that offer at least some level of encryption, for example iphone video apps such as FaceTime, and that payment and other personal information like social security numbers, addresses, and insurance identification numbers be transmitted separately and encrypted if possible.

• Do not overlook the need for patient authorizations to receive services via telehealth.

While telehealth authorizations are not strictly required for Medicare or other reimbursement, they are required by many state laws and to meet the standard of care. Commercial plans could refuse to authorize or pay for telehealth services if state law authorization requirements or accepted standards are not met. In general, patients must be fully advised about and understand the technological limitations associated with the telehealth visit and any limitations inherent in a remote visit that are not present when visits are in person. This could include a physician’s inability to check vital signs or heart beats and to closely observe other physical characteristics.

In most states, oral authorization is sufficient if documented in the patient’s medical record. We recommend sending written authorizations to patients in advance explaining the limitations of telehealth, technologically and clinically, and obtaining some recorded indication that the patient understood and authorized the services despite the limitations.

• Providers are free to market telehealth services, waive patient out-of-pocket costs and co-pays, and provide financial benefits to physicians to support the delivery of telehealth.

HHS specifically advised that providers may market telehealth services, and providers are always free under HIPAA to market their own services to patients. While beneficiary inducement may be of concern, the OIG is providing health care providers flexibility to reduce or waive fees. However, Medicare, Medicaid, and commercial plans may claim that doing so is a violation of payor contracts or interferes with the plans’ ability to manage care.

HHS and other health care providers may also lawfully pay above or below fair market value to rent equipment or receive services from physicians and health care providers can support each other financially to ensure continuity of health care operations. 

• Based on the Secretary’s guidance, physicians and other practitioners need not be concerned about industry standards, at least, regarding the existence of a physician/provider – patient relationship.

CMS also acknowledged another potential stumbling block to the delivery of telehealth during the PHE: a perceived need to have an existing relationship with a telehealth patient. One expression of such a standard came from the AMA, which stated: “The AMA believes that a valid patient-physician relationship must be established before the provision of telemedicine services, through: (i) A face-to-face examination, if a face-to-face encounter would otherwise be required in the provision of the same service not delivered via telemedicine; or (ii) A consultation with another physician who has an ongoing patient-physician relationship with the patient.” To overcome this concern, CMS said: “To the extent the waiver (section 1135(g)(3)) requires that the patient have a prior established relationship with a particular practitioner, HHS will not conduct audits to ensure that such a prior relationship existed for claims submitted during this public health emergency.”

But as the Secretary has recognized, state law governs this issue, and most states permit the requisite relationship to be developed via telemedicine. Indeed, Washington DC law provides that such a relationships may be developed over the phone. 

• Only specified professionals may bill for telehealth services and state licensing laws apply, with exceptions during the PHE.

Providers may wish to have underutilized professionals provide reimburseable medically necessary telehealth services. Qualified providers who are permitted to furnish Medicare telehealth services during PHE and otherwise include physicians and certain non-physician practitioners including nurse practitioners, physician assistants, certified nurse midwives, clinical nurse specialists, certified nurse anesthetists, registered dietitians or nutrition professionals, clinical psychologists (“CPS”) and licensed clinical social workers (“CSWs”) (although CPs and CSWs cannot bill Medicare for psychiatric diagnostic interview examinations with medical services or medical evaluation and management services and cannot bill or get paid for CPT codes 90792, 90833, 90836, and 90838). FQHCs and RHCs may bill for furnishing telehealth services during the emergency period only.

CMS broadened the availability of HCPCS codes G2010 and G2012 to allow such practitioners, who do not report E/M codes, to bill for covered services delivered via telehealth.

If a Medicare beneficiary is in a health care facility (even if the facility is not in a rural area or not in a health professional shortage area) and receives a service via telehealth, the health care facility is eligible to bill for the originating site facility fee, which is reported under HCPCS code Q3014. But when beneficiaries receive services in their homes, no originating site facility fee may be billed. Distant site facilities are not entitled to reimbursement.

Providers should consult state law and payor contracts to determine what healthcare professionals can provide reimburseable care. Providers should also ensure compliance with supervision requirements under state law whether for Medicare or other reimbursement. If these are not met and documented, providers may face false claims liability along with denials.

Many state governors and agencies have sought to address provider shortages during the PHE by permitting practitioners licensed in another state to practice within their states. For example, in New York, by Executive Order, physicians, registered nurses, licensed practical nurses, nurse practitioners, and physician assistants licensed and in current good standing in any state in the United States may practice medicine in New York State without civil or criminal penalty related to lack of licensure. As another example, according to an email from the Department of Licensing and Regulatory Affairs (LARA), telemedicine services ordinarily must be provided by a health care professional who is licensed, registered, or otherwise authorized to engage in his or her health care profession in Michigan if the patient is located in Michigan subject to an exemption for individuals who substantially meet Michigan licensure requirements while rendering medical care in a time of disaster.