We are here to help. Visit our Coronavirus (COVID-19) Task Force Resource Center for the latest developments and legal updates.

We are here to help. Visit our Coronavirus (COVID-19) Task Force Resource Center for the latest developments and legal updates.

Morris Manning & Martin, LLP

Current State of Telemedicine Rules Under Coronavirus

03.18.2020

Last week, Congress passed measures that will allow CMS to relax Medicare telemedicine rules for Medicare payment, and CMS has issued new guidance to that effect. Specifically, that guidance does the following:

  • Allows Medicare payment for telehealth provided in areas in which there is a State of Emergency. As of March 13, that means that telehealth services are reimburseable by Medicare nationwide.
  • Allows Medicare payment provided via telephone so long as the telephone has both audio and video capability. As a practical matter, this means that any smart phone would be eligible while most landlines would not.
  • Allows professional fee payment for telehealth services provided even when a patient is not located at a qualified originating site. In other words, physicians could provide telehealth services to patients in their home and receive professional fee reimbursement.

Importantly, the bill is not limited to patients seeking treatment for the virus. Rather, this bill gives physicians flexibility to maintain treatment of their patients, or treat their patients for other ailments, without the patient having to seek treatment outside of their home. This will preserve valuable physician resources and also protect frail patients from potential exposure.

Consistent with the administrations requests, regulatory guidance also clarifies that physicians may waive co-insurance for these services. Please refer to CMS’s fact sheet for information related to billing of telehealth services: https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet

One limitation of the bill is that only “qualified providers” may receive payment. A “qualified provider” is a physician who has seen the patient in the past three years or is in the same group practice (defined by same tax ID number here) as a physician who saw the patient in the past three years. However, CMS has stated that it will not conduct audits of this requirement for bills submitted during public health emergencies. One presumes that CMS would not extent this discretion to the extent that this privilege is used in any fraudulent manner.

In addition, CMS issued waivers on Friday March 13 that waive the Medicare requirement that the physician be licensed in the state in which they are practicing. Therefore, for Medicare, a physician licensed in one state would be permitted to provide telehealth services to a patient in another state.  However, in Georgia, a physician outside of Georgia seeking to provide telehealth services currently would need to obtain a limited telemedicine license.

In that connection, another significant limitation is that CMS cannot waive state law requirements. Therefore, Georgia’s physician licensure requirements, including for telehealth, continue to apply until waived. Georgia has not waived those requirements as of March 18. In addition, although Medicare has waived requirements for telemedicine requirements, Georgia’s state law telemedicine rules continue to apply. With that said, we do not know whether the Georgia Composite Medical Board would seek to discipline a physician providing services, in good faith, to patients even if certain telemedicine rules were not met. To the extent that hospital systems are establishing larger telemedicine functions in this time, we recommend clear policies on standards of care. As a brief note of caution, this is a time when patients could be taken advantage of, and government authorities will certainly discipline any bad actors once the state of emergency has ended.

Providers may also wonder whether physicians can provide services to patients outside of Georgia if the physician is not licensed there. This will depend heavily on state laws and how quickly states move to waive existing laws. As a practical matter, in terms of enforcement, this will depend also on development of the virus and whether hospitals and physicians have capacity limitations.

Resources

H.R. 6074

H.R. 6201

Ga. R. & Regs. 360-3-.07

Medicare Telemedicine Health Care Provider Fact Sheet

Please contact MMM’s healthcare team for more information.