Like most attorneys in the spring of 2020, I am working from home and composing this article on my laptop. Most of what I do can be done from anywhere that has an internet connection. Many forms of medical evaluation and treatment also can be performed remotely via commonly available technology. In some cases, telemedicine was already permitted, if not commonly used, before the advent of the novel coronavirus, COVID-19, and in other situations a number of regulatory and reimbursement barriers have been modified to respond to the crisis.
First, we should define what we mean by “telemedicine.” The American Medical Association (AMA) considers telemedicine to be a continuum of technologies including real-time, audio-video communication tools that connect physicians and patients in different locations; store-and-forward technologies that collect images and data to be transmitted and interpreted later; remote patient-monitoring tools such as blood pressure monitors, Bluetooth-enabled digital scales and other wearable devices that can communicate biometric data for review (which may involve the use of mHealth apps); and verbal/audio-only and virtual check-ins via patient portals or other messaging technologies.
HIPAA privacy and security
The Office of Civil Rights (OCR) of the Department of Health and Human Services (HHS), the federal agency that oversees HIPAA, has announced that they will exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered healthcare providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency under certain conditions. This will permit physicians and other providers to contact patients using many free cellphone apps and similar technology.
The OCR notice stated that providers and other covered entities may use “non-public facing” remote communication products to communicate with patients, even if those platforms do not meet the strict security requirements of HIPAA. Note that OCR will refrain from imposing penalties for use of these telemedicine tools for evaluation and treatment of COVID-19 as well as unrelated conditions. “Non-public facing” platforms are those that employ end-to-end encryption, and allow only an individual and the person with whom the individual is communicating to see what is transmitted. These platforms include individual user accounts, logins and passcodes to help limit access and verify participants, and allow users to determine whether to record or not record the communication or to mute or turn off the video or audio signal at any point. OCR has specifically included Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Whatsapp video chat, Zoom, Skype, as well as texting applications such as Signal, Jabber, Facebook Messenger, Google Hangouts, Whatsapp, or iMessage. In contrast, a public-facing platform is one that is generally accessible to the public without passwords or logins, such as TikTok, Facebook Live, Twitch, or a chat room like Slack, and protected health information (PHI) should not be disclosed via those platforms.
Providers are encouraged to notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications.
OCR encourages covered entities to enter into Business Associate Agreements with vendors, and listed a number of vendors that have agreed to sign BAAs, but OCR will not impose penalties for failure to obtain a BAA with video communication vendors or any other noncompliance with the HIPAA Rules that relates to the good faith provision of telehealth services during the COVID-19 nationwide public health emergency.
On March 17, 2020, CMS issued a waiver that broadened access to telemedicine services for Medicare beneficiaries under the President’s emergency declaration. This waiver, which took effect for services rendered on or after March 6, 2020, eliminates the prior requirement that limited payment to situations when the patient is in a designated rural area and when they leave their home and go to a clinic, hospital, or certain other types of medical facilities for the service. Physicians, nurse practitioners, physician assistants, nurse midwives, certified nurse anesthetists, clinical psychologists, clinical social workers, registered dietitians and nutrition professionals may qualify for reimbursement for telehealth visits. HHS will not conduct audits to ensure that any required prior relationship existed for claims submitted during the public health emergency. Note that there are no geographic restrictions and the patient need not be located in a designated rural area.
For “Telehealth Visits,” the provider must generally use a system that includes both audio and video and permits real-time communication with the patient. This would include Skype, FaceTime and similar videoconferencing apps. The remote visits may be billed under CPT codes 99421-99423 and HCPCS codes G2061-G206. These services will be paid at the same rate as regular, in-person visits based on existing evaluation and management standards.
On March 30, 2020, CMS announced that clinicians can now bill Medicare for the following additional services provided by telehealth: Emergency Department Visits, Levels 1-5 (CPT codes 99281-99285); Initial and Subsequent Observation and Observation Discharge Day Management (CPT codes 99217-99220; CPT codes 99224-99226; CPT codes 99234-99236); Initial hospital care and hospital discharge day management (CPT codes 99221-99223; CPT codes 99238-99239); Initial nursing facility visits, All levels (Low, Moderate, and High Complexity) and nursing facility discharge day management (CPT codes 99304-99306; CPT codes 99315-99316); Critical Care Services (CPT codes 99291-99292); Domiciliary, Rest Home, or Custodial Care services, New and Established patients (CPT codes 99327-99328; CPT codes 99334-99337); Home Visits, New and Established Patient, All levels (CPT codes 99341-99345; CPT codes 99347-99350); Inpatient Neonatal and Pediatric Critical Care, Initial and Subsequent (CPT codes 99468-99473; CPT codes 99475-99476); Initial and Continuing Intensive Care Services (CPT code 99477-994780); Care Planning for Patients with Cognitive Impairment (CPT code 99483); Psychological and Neuropsychological Testing (CPT codes 96130-96133; CPT codes 96136-96139); Therapy Services, Physical and Occupational Therapy, All levels (CPT codes 97161-97168; CPT codes 97110, 97112, 97116, 97535, 97750, 97755, 97760, 97761, 92521-92524, 92507); and Radiation Treatment Management Services (CPT codes 77427).
Additionally, licensed clinical social worker services, clinical psychologist services, physical therapy services, occupational therapist services and speech language pathology services can be paid for as Medicare telehealth services. For services requiring direct supervision by the physician or other practitioner, CMS has stated that physician supervision can be provided virtually using real-time audio/video technology.
“Virtual Check-Ins” are defined as brief, five- to 10-minute communications between patients and physicians or certain practitioners. On March 30, 2020, CMS announced it will pay claims for these services for both established and new patients. Simultaneous video and audio is not required; a telephone, audio/video, secure text messaging, email, or use of a patient portal is sufficient. These services can be billed under HCPCS codes G2012 and G2010.
“E-Visits” are non-face-to-face patient-initiated communications between practitioners and patients using online patient portals. Physicians, licensed clinical social workers, clinical psychologists, physical therapists, occupational therapists and speech language pathologists can provide e-visits. The patient must generate the initial inquiry and communications can occur over a seven-day period. The services may be billed using CPT codes 98966-98968, 99421-99423 and HCPCS codes G2061-G2063, as applicable.
Remote patient monitoring, such as pulse oximetry, can be provided to both new and established patients for both acute and chronic conditions and can now be provided for patients with only one disease (CPT codes 99091, 99457-99458, 99473-99474, 99493-99494).
You may legally reduce or waive any co-pays, deductibles or other cost-sharing obligations that Medicare and other federal patients may owe for telehealth services, under an announcement made by the Office of Inspector General (OIG) on March 17, 2020. Generally, the Civil Monetary Penalties Law prohibits routinely waiving coinsurance and deductibles without a case-by-case determination of financial need. This notice provides that OIG will not impose any penalties if a physician or other practitioner reduces or waives cost-sharing obligations (i.e., coinsurance and deductibles) that a beneficiary may owe for telehealth services furnished consistent with the then-applicable coverage and payment rules so long as the telehealth services are furnished during the time period subject to the COVID-19 Declaration. Providers are permitted to waive or reduce those costs, but are not required to do so.
Pennsylvania Medical Assistance will reimburse physicians, certified registered nurse practitioners and certified nurse midwives for live-video patient visits under certain circumstances. The Medical Assistance program also will reimburse for telepsychiatry services provided by licensed psychiatrists and psychologists including psychiatric diagnostic evaluations; psychological evaluations; pharmacological management; consultations (with patient/family); and psychotherapy. Federally Qualified Health Centers and Rural Health Clinics also may qualify for payment in some situations. Medicaid managed care plans may impose their own restrictions and criteria, so you should carefully check with each payor to determine their policies.
As reported in the Bulletin in prior months, Pennsylvania remains one of the few states without comprehensive telemedicine legislation. Bills have been introduced in Harrisburg which would clearly mandate coverage of telemedicine services by all payors (“payment parity”), and clarify the state licensure requirements for providing telemedicine services. The ACMS, along with the Pennsylvania Medical Society and other professional societies, have strongly supported this legislation and are hopeful that the current crisis will inspire the General Assembly to approve these long-awaited reforms.
In the absence of such laws, you should check with each private payor with which you participate to determine their policies on reimbursement for telemedicine.
Some of the regulations described in this article have changed between the time I started writing and when I hit “send,” so by the time you read this, additional changes may have occurred. I encourage you to consult your personal healthcare attorney to address any questions you may have in this rapidly evolving regulatory environment. From the safety of my dining room, I commend all physicians and healthcare workers who are heroically battling this unprecedented pandemic every day, and I am hopeful that the expanded use of telemedicine technology may help slow its trajectory.