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March 26, 2020

Massachusetts and the Federal Government Expand Telemedicine Services and Coverage in Response to COVID-19

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In conjunction with advisories to avoid healthcare facilities and to remain at home as much as possible, both the federal and Massachusetts governments have recently issued orders to promote the use of telehealth, or telemedicine, services to reduce in-person interaction and meet healthcare needs. Just last week in response to the evolving coronavirus pandemic, the Trump Administration expanded Medicare coverage for telehealth services, while Governor Baker issued an executive order requiring commercial payors to cover medically necessary telehealth services rendered virtually, as if the services were rendered in-person. Governor Baker’s order requires insurers to adopt temporary telehealth policies similar to those adopted by MassHealth earlier this week. To address immediate and relentless demands on the health care sector, providers in Massachusetts can render reimbursable telehealth services for a spectrum of treatments and through a variety of technologies for the duration of the public health emergency.

Medicare Coverage:
On March 17, 2020, President Trump announced an expansion of telehealth benefits for Medicare beneficiaries for the duration of the COVID-19 outbreak. This action promotes social-distancing and minimizes non-essential, face-to-face interaction, especially for high-risk individuals.

For services beginning March 6, 2020, requirements for Medicare-reimbursable telehealth services have been relaxed pursuant to the U.S. Department of Health and Human Services (HHS) Secretary’s authorization of a 1135 waiver and the enactment of the Coronavirus Preparedness and Response Supplemental Appropriations Act.

Significant areas expanded by the waiver include:
• Service Expansion: Telehealth is no longer reserved predominantly for routine visits. Services such as routine visits, mental health counseling, and preventative health screenings may be offered as a covered telehealth service.
• Elimination of Onsite Requirement: Onsite requirements limiting beneficiaries to those located in certain healthcare facilities in rural areas have been expanded. A beneficiary may now receive telehealth services in any healthcare facility, or in the beneficiary’s home, regardless of location, so long as it differs from the provider’s location.
• New Modalities: Despite previous modality limitations, telehealth services may now be offered through audio-visual communication tools such as a personal telephone with audio-visual capability (i.e. – FaceTime on an iPhone) or web-based platforms (i.e. – Skype). HIPAA enforcement will be less strict for providers administering telehealth services in good faith through HIPAA non-compliant platforms at this time.
• No Existing Patient Relationship Required: Despite the original requirement that a beneficiary have received prior in-person care from a provider before initiating telehealth services, HHS announced it will not audit providers to ensure a relationship existed for the duration of the COVID-19 outbreak.

The waiver does not change the types of providers qualified to bill Medicare for telehealth services. Notably, the HHS Office of the Inspector General is permitting greater flexibility for providers to reduce or waive cost-sharing for services paid by federal programs.

The waiver, and subsequent expansion of Medicare-reimbursable telehealth, is in effect for the duration of the public health emergency.

For more information regarding President Trump’s announcement, see the CMS Press Release.
For more information on Medicare-reimbursable telehealth services, see the CMS Fact Sheet.
For more information detailing the terms of the waiver, see the CMS Frequently Asked Questions.

MassHealth (Medicaid) Coverage:
While MassHealth has previously considered telehealth to be an acceptable modality for the purposes of behavioral health treatment, the MassHealth All Provider Bulletin 289 (Bulletin 289) released last week expands telehealth coverage to all providers acting within their licensed scope of practice. Starting April 1, 2020, healthcare providers can bill MassHealth for clinically appropriate and medically necessary telehealth services beginning March 12, 2020. MassHealth coverage for telehealth services applies to members enrolled in fee-for-service and Primary Care Clinician plans or a Primary Care ACO.

The traditional definition of “telemedicine” under M.G.L. c. 175, § 47BB excludes “audio-only telephone, facsimile machine or e-mail” from permissible delivery mechanisms. Bulletin 289, however, does not mention any limitations on the technology a provider may use in rendering telehealth services. Telephone and live video are two options considered permissible in the Bulletin. Further, similar to the Medicare expansion, an initial in-person evaluation prior to commencing telehealth services will not be required at this time.

Additionally, physicians, acute outpatient hospitals, community health centers, outpatient behavioral health providers, and early intervention providers can seek MassHealth reimbursement for telephone evaluations.

Guidelines for rendering covered services through telehealth are included as Appendix A of Bulletin 289. The specific requirements for telehealth encounters are excerpted below:

  1. Providers must properly identify the patient using, at a minimum, the patient's name, date of birth, and MassHealth ID.
  2. Providers must disclose and validate the provider's identity and credentials, such as the provider's license, title, and, if applicable, specialty and board certifications.
  3. For an initial appointment with a new patient, the provider must review the patient's relevant medical history and any available medical records with the patient before initiating the delivery of the service.
  4. For existing provider-patient relationships, the provider must review the patient's medical history and any available medical records with the patient during the service.
  5. Prior to each patient appointment, the provider must ensure that the provider is able to deliver the service to the same standard of care and in compliance with licensure regulations and requirements, programmatic regulations, and performance specifications related to the service (e.g., accessibility and communication access) using telehealth as is applicable to the delivery of the services in person. If the provider cannot meet this standard of care or other requirements, the provider must direct the patient to seek in-person care. The provider must make this determination prior to the delivery of each service.
  6. To the extent feasible, providers must ensure the same rights to confidentiality and security as provided in face-to-face services. Providers must inform members of any relevant privacy considerations.
  7. Providers must follow consent and patient information protocols consistent with those followed during in-person visits.
  8. Providers must inform patients of the location of the provider rendering services via telehealth (i.e., distant site) and obtain the location of the patient (i.e., originating site).
  9. The provider must inform the patient of how the patient can see a clinician in-person in the event of an emergency or as otherwise needed.

Essentially, as long as providers are acting in compliance with licensure requirements and can provide patients with the same standard of care as if in-person, MassHealth will cover telehealth services deemed clinically appropriate and medically necessary regardless of previous limitations on technology and treatment.

For more information on MassHealth’s coverage of telehealth services, see the MassHealth All Provider Bulletin 289.

Commercial Payor Coverage:
On March 15, 2020, Governor Baker executed an “Order Expanding Access to Telehealth Services and To Protect Health Care Providers.” This Order requires the Group Insurance Commission, all commercial health insurers, Blue Cross Blue Shield, and HMOs regulated by the Division of Insurance to permit all in-network providers to deliver medically necessary telehealth services and reimburse the services rendered. The Order prohibits payors from imposing requirements any more stringent than those imposed in Bulletin 289, described above. Additionally, the Order requires insurers to waive co-pays, deductibles, and coinsurance, as well as prior authorization requirements, for telehealth services related to COVID-19. While none of the major Massachusetts commercial payors have released guidelines or new provider requirements in light of Governor Baker’s Order at present, the requirements established by MassHealth for telehealth encounters are as stringent as providers should expect from a commercial payor.

For more information regarding telehealth coverage required of commercial payors, see Governor Baker’s Executive Order.

About the Author

Elizabeth Foley

Elizabeth Foley is an attorney in the firm’s Health Law practice, where she brings over 30 years of specialized experience in employment matters, health care corporate and litigation actions involving health care fraud and abuse, Medicare, Medicaid and third-party payer billing and coding audits, white-collar civil and criminal investigations, and physician and other health care practitioner disciplinary matters. She also advises clients on corporate and transactional matters, including ensuring compliance with all state and federal rules and regulations. Elizabeth served as an assistant attorney general in the Office of the Massachusetts Attorney General for ten years and as senior counsel in Blue Cross Blue Shield of Massachusetts, Inc.’s Fraud Investigation and Prevention Unit. You can find her on LinkedIn.

Sydney Sachs, a law clerk with Barrett & Singal, assisted with this article. She is a third-year student at Boston University School of Law where she is Executive Editor for Management of the Review of Banking & Financial Law. You can find her on LinkedIn.

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