On June 2, 2020, the staffs of the Federal Trade Commission’s (FTC) Office of Policy Planning, Bureau of Economics, Bureau of Competition and Office of the General Counsel submitted a comment to the Centers for Medicare & Medicaid Services (CMS) on its Interim Final Rule regarding policy and regulatory revisions in response to the COVID-19 public health emergency.  The FTC press release may be found here.

The Interim Final Rule provides flexibilities to individuals and entities servicing Medicare beneficiaries during the COVID-19 public health emergency by changing Medicare payment rules to allow healthcare providers to furnish services using remote communications technology.  Physicians, other practitioners, home health and hospice providers, inpatient rehabilitation facilities, rural health clinics, and federally qualified health centers are given broad flexibilities to provide services while avoiding exposure risks.

The FTC staff comment supports the Interim Final Rule provisions reducing or eliminating restrictive Medicare payment requirements for telehealth and other communication technology-based services (CTBS) during the COVID-19 emergency.  The FTC staff have been particularly interested in telehealth in recent years because of its potential to benefit consumers and competition by increasing the supply of available practitioners, encouraging competition, and improving access to affordable, quality health care.

Specifically, the FTC staff wrote in support of CMS allowing Medicare reimbursement for telehealth services provided to a patient at any location and expanding the types of Medicare-reimbursable telehealth services.  CMS has authorized more than 80 additional types of telehealth services beyond the statutory limits, including emergency department visits, intensive care unit services and home visits.  In addition, the FTC staff comment supports the use of CMS waiver authority to designate non-physician practitioners, such as physical therapists and speech-language pathologists, as authorized Medicare telehealth services providers.  The FTC staff comment also supports the expansion of reimbursable telehealth services provided by audio-only telephone, modifying Medicare’s establish patient requirement, and allowing direct supervision of advanced practitioners to be conducted via telecommunication technology.

The FTC staff comment makes a number of suggestions to further reduce restrictions.  Regarding Medicare’s established patient requirement, the FTC staff comment suggests that after the public health emergency “CMS consider allowing licensed practitioners to decide whether to provide at least some CTBS services to new as well as established patients.” The FTC staff comment also recommends that CMS amend the Medicare rules to eliminate direct supervision of non-physician practitioners in non-institutional settings and allow state supervision and collaboration requirements to determine oversight requirements.  Finally, the FTC staff comment recommends that CMS ask Congress to eliminate the “incident to” billing provision and instead require non-physician practitioners to bill Medicare directly.

Norton Rose Fulbright attorneys will continue to provide relevant updates for healthcare providers on the Health Law Pulse during the COVID-19 public health crisis.