On Tuesday, March 17, 2020, the Trump administration announced that it will immediately expand access to telehealth services for all Medicare beneficiaries during the COVID-19 outbreak. In coordination with this announcement, the Office for Civil Rights at the Department of Health & Human Services (HHS) released a notification stating that HHS has temporarily suspended certain HIPAA requirements and will exercise enforcement discretion in order to facilitate healthcare providers to provide these telehealth services. Specifically, OCR guidance describes that Secretary Alex Azar has exercised the authority to waive sanctions and penalties for the following HIPAA provisions:

  • the requirement to obtain a patient’s agreement in order to speak with family members or friends involved in the patient’s care. See 45 CFR 164.510(b).
  • the requirement to honor a request to opt out of the facility directory. See 45 CFR 164.510(a).
  • the requirement to distribute a notice of privacy practices. See 45 CFR 164.520.
  • the patient’s right to request privacy restrictions. See 45 CFR 164.522(a).
  • the patient’s right to request confidential communications. See 45 CFR 164.522(b).

Effective retroactively to March 6, 2020, the Centers for Medicare & Medicaid Services (CMS) will allow providers to bill Medicare for a range of telehealth services. Providers of telehealth services will be reimbursed the same amount as they would for in-person visits and Medicare coinsurance and deductibles will generally remain the same. The HHS Office of Inspector General announced that it has also provided enhanced flexibility to healthcare providers by reducing or waiving cost sharing for telehealth visits. In addition, CMS will not conduct audits to determine if the patient had a prior established relationship with a particular provider who is providing the telehealth services, which was previously a requirement.

Prior to these pronouncements, Medicare covered telehealth services only for beneficiaries who lived in a rural area and received their telehealth services at a hospital, clinic, or other medical facility. However, for the duration of this public health emergency, Medicare will cover and pay for telehealth services provided in a beneficiary’s home or in any healthcare facility.

CMS’s press release and fact sheet further explains that this decision is consistent with the increased regulatory flexibilities granted to President Trump following his national emergency declaration on March 13. In addition, as stated in CMS’s Medicare Telehealth Frequently Asked Questions, CMS is expanding Medicare’s telehealth benefits on a temporary basis under the 1135 waiver authority and the Coronavirus Preparedness and Response Supplemental Appropriations Act, which was enacted into law on March 6 and permits Medicare payment for telemedicine provided by a qualified provider during an emergency period.

CMS Administrator Seema Verma stated during Tuesday’s briefing that CMS is encouraging states to expand the use of telehealth in its Medicaid programs. CMS also released a guidance document to help states better understand the options to reimburse Medicaid providers for telehealth services.

Through the Health Law Pulse we will continue to provide updates pertinent to healthcare providers regarding the federal government’s response to the COVID-19 public health emergency.