Coronavirus – CMS Guidance Part Two

For more information about this blog post, please contact Khaled J. KleleRyan M. Magee, or Labinot Alexander Berlajolli.

This update is a follow-up to our previous update on COVID-19 and the steps that the federal government has taken to combat the virus.  Most critically, The Centers for Medicare & Medicaid Services ("CMS")  has significantly expanded telemedicine services to Medicare beneficiaries.  For example, CMS has waived the requirement that a physician must have a previous relationship with the patient before providing some services, such as telehealth visits.  The issue is that New Jersey has its own telemedicine statute and has not waived that requirement.  In fact, New Jersey just recently enacted telemedicine regulations that impose some onerous requirements before engaging in telemedicine.  Also significant is the Office of Civil Rights’ decision to exercise discretion and waive penalties for providing telemedicine services through FaceTime or Skype.

March 12:  CMS issued Frequently Asked Questions (“FAQs”) to aid state Medicaid and Children’s Health Insurance Program (CHIP) agencies in their response to COVID-19 outbreak. The FAQs cover a range of topics and issues that reflect questions and concerns raised by state Medicaid and CHIP agencies.  The information highlights the resources available to states, such as the Disaster Preparedness Toolkit developed by CMS specifically for state Medicaid and CHIP agencies, to address a variety of policy and program topics related to eligibility and enrollment, benefits and cost sharing, healthcare workforce, and telehealth.  

March 13: CMS issued FAQs detailing existing federal rules governing health coverage provided through the individual and small group insurance markets that apply to the diagnosis and treatment of COVID-19.  The FAQs clarify which COVID-related services, including testing, isolation/quarantine, and vaccination, are generally currently covered as Essential Health Benefits in these markets. 

March 13:  President Trump declares a National Emergency.

March 13:  As a result of the President’s declaration, CMS was able to take several aggressive actions:

  1. CMS has issued several blanket waivers to requirements under Medicare, Medicaid and the  CHIP program requirements, including temporarily allowing physicians licensed in other states to treat Medicaid and Medicare patients in states in which the physician is not licensed. This, however, does not apply to patients with insurance policies regulated at the state level, such as private insurance policies.  Other waivers cover Skilled Nursing Facilities, Critical Access Hospitals, Housing Acute Care Patients In Excluded Distinct Part Units, Durable Medical Equipment, Care for Excluded Inpatient Psychiatric Unit Patients in the Acute Care Unit of a Hospital, Care for Excluded Inpatient Rehabilitation Unit Patients in the Acute Care Unit of a Hospital, Supporting Care for Patients in Long-Term Care Acute Hospitals, Home Health Agencies, Provider Enrollments, and Medicare Appeals.
  2. The national emergency declaration also enables CMS to a wider range of flexibilities under section 1135 waivers. States can assess their needs and request these available flexibilities, which are outlined in the Medicaid and CHIP Disaster Response Toolkit.  CMS has already granted such a waiver to Florida, which included flexibilities that enable the state to waive prior authorization requirements to remove barriers to needed services, streamline provider enrollment processes to ensure access to care for beneficiaries, allow care to be provided in alternative settings in the event a facility is evacuated to an unlicensed facility, suspend certain nursing home screening requirements to provide necessary administrative relief, and extend deadlines for appeals and state fair hearing requests.
  3. CMS temporarily suspended non-emergency survey inspections.

March 13   CMS issued additional guidance directing nursing homes to significantly restrict visitors and nonessential personnel, as well as restrict communal activities inside nursing homes.

March 15: The Department of Health & Human Services ("HHS") issued guidance on waiving sanctions and penalties against covered hospitals that do not comply with certain provisions of the HIPAA Privacy Rule.

March 15:  On Sunday, the Coronavirus Task Force announced that it would release social distancing guidelines the following day.  Those guidelines provided detailed social distancing guidelines, including a limit on social gatherings to 10 people.  These guidelines are more strict than those issued by some states. 

March 16:  The FDA issued a guidance document allowing states to approve tests developed in laboratories in their states to expedite testing of COVID-19.

March 17:    CMS announced expanded Medicare telehealth coverage that will enable Medicare beneficiaries to receive a wider range of healthcare services from their doctors without having to travel to a hospital or doctor’s office, retroactive to March 6.   Previously, telehealth services were restricted under the Medicare program.  CMS’ recently issued guidance document and FAQs explain the recent expansion and the billing codes to use.  Under this Medicare waiver, CMS has broadened the services, to include the following three areas:

Medicare Telehealth Visits:  CMS will not conduct audits to determine whether patients had a prior established relationship with a particular practitioner.  These visits are considered the same as in-person visits and are paid at the same rate as regular, in-person visits.  CMS will also make payment for professional services furnished to beneficiaries in all areas of the country in all settings and CMS expanded the location to include the patient’s home.  In addition, the OIG is providing flexibility for healthcare providers to reduce or waive cost-sharing for telehealth visits paid by federal healthcare programs.

Virtual Check-Ins:  Medicare patients in their homes may have a brief communication service with practitioners via a number of communication technology modalities, such as a phone, for a 5-10 minute conversation.  The service is not limited to rural settings any longer. Medicare pays for these “virtual check-ins” for patients to communicate with their doctors and avoid unnecessary trips to the doctor’s office. These virtual check-ins are for patients with an established relationship with a physician where the communication is not related to a medical visit within the previous seven days and does not lead to a medical visit within the next 24 hours (or soonest appointment available). The practitioner’s response has expanded to include telephone, audio/video, secure text messaging, email, or use of a patient portal. 

E-Visits:  This is for all locations, including the patient’s home, and in all areas and not just rural areas.  E-Visits involve evaluation and management services involving patients that have an established patient-provider relationship. 

March 17:  The Office of Civil Rights has announced that it 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. 

March 17:  CMS released Medicaid fee-for-service telehealth guidance to the states.

March 17:  CMS issued additional guidance to all Programs of All-Inclusive Care for the Elderly (PACE) Organizations (POs).  POs assist the elderly in the community instead of going to a nursing home or other care facility.  Considering that POs serve the most vulnerable population to COVID-19 PACE, CMS has issued this guidance on accepted policies and standard procedures with respect to infection control.