The Sheppard Mullin Healthcare Law Blog has included many blog articles over the last weeks and months regarding telehealth. As our most recent blog articles show, telehealth is playing an important role in the COVID-19 pandemic – telehealth is a natural-born solution to the problem of providing healthcare while meeting the challenges of social distancing.
Most recently, the importance of telehealth is evident in the Coronavirus Aid, Relief, and Economic Security Act of 2020 (“CARES Act”), a $2 trillion stimulus bill that was signed into law by the President on March 27, 2020. As described by the Senate, the CARES Act is intended to provide, “emergency assistance and healthcare response for individuals, families and businesses affected by the 2020 coronavirus pandemic.” The CARES Act includes many provisions designed to facilitate the expansion of telehealth as a way to meet some of the healthcare challenges presented by COVID-19 and the public health efforts that are currently underway to stem the spread of the virus.
The following is a section-by-section list of the telehealth provisions included in the CARES Act as highlighted by the Senate Committee on Finance in a summary report posted on March 25, 2020:
- 3701. Health Savings Accounts for Telehealth Services. This section would allow a high-deductible health plan (HDHP) with a health savings account (HSA) to cover telehealth services prior to a patient reaching the deductible, increasing access for patients who may have the COVID-19 virus and protecting other patients from potential exposure.
- 3702. Over-the-Counter Medical Products without Prescription. This section would allow patients to use funds in HSAs and Flexible Spending Accounts for the purchase of over-the-counter medical products, including those needed in quarantine and social distancing, without a prescription from a physician.
- 3703. Expanding Medicare Telehealth Flexibilities. This section would eliminate the requirement in Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020 (Public Law 116-123) that limits the Medicare telehealth expansion authority during the COVID-19 emergency period to situations where the physician or other professional has treated the patient in the past three years. This would enable beneficiaries to access telehealth, including in their home, from a broader range of providers, reducing COVID-19 exposure. For further discussion, please see our recent blog entry dated March 16, 2020 and our recent blog entry dated March 24, 2020.
- 3704. Allowing Federally Qualified Health Centers and Rural Health Clinics to Furnish Telehealth in Medicare. This section would allow, during the COVID-19 emergency period, Federally Qualified Health Centers and Rural Health Clinics to serve as a distant site for telehealth consultations. A distant site is where the practitioner is located during the time of the telehealth service. This section would allow FQHCs and RHCs to furnish telehealth services to beneficiaries in their home. Medicare would reimburse for these telehealth services based on payment rates similar to the national average payment rates for comparable telehealth services under the Medicare Physician Fee Schedule. It would also exclude the costs associated with these services from both the FQHC prospective payment system and the RHC all-inclusive rate calculation. services based on payment rates similar to the national average payment rates for comparable telehealth services under the Medicare Physician. For further discussion, please see our recent blog entry dated March 16, 2020.
- 3705. Expanding Medicare Telehealth for Home Dialysis Patients. This section would eliminate a requirement during the COVID-19 emergency period that a nephrologist conduct some of the required periodic evaluations of a patient on home dialysis face-to-face, allowing these vulnerable beneficiaries to get more care in the safety of their home.
- 3706. Allowing for the Use of Telehealth during the Hospice Care Recertification Process in Medicare. Under current law, hospice physicians and nurse practitioners cannot conduct recertification encounters using telehealth. This section would allow, during the COVID-19 emergency period, qualified providers to use telehealth technologies in order to fulfill the hospice face-to-face recertification requirement. For further discussion, please see our recent blog entry dated March 18, 2020 and our recent blog entry dated March 19, 2020.
- 3707. Encouraging the Use of Telecommunications Systems for Home Health Services in Medicare. This section would require the Health and Human Services (HHS) to issue clarifying guidance encouraging the use of telecommunications systems, including remote patient monitoring, to furnish home health services consistent with the beneficiary care plan during the COVID-19 emergency period.
- 3708. Enabling Physician Assistants and Nurse Practitioners to Order Medicare Home Health Services. This section would allow physician assistants, nurse practitioners, and other professionals to order home health services for beneficiaries, reducing delays and increasing beneficiary access to care in the safety of their home. For further discussion, please see our recent blog entry dated March 20, 2020.
For more legal insights regarding the coronavirus, please visit our Coronavirus (COVID-19) page.
Given the speed with which COVID-19 has prompted a wide-range of legal action at the federal, state and local governmental levels, this blog article is not exhaustive. Things are changing quickly and there is no clear-cut authority or bright line rules. This is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand. This post does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic.
*This alert is provided for information purposes only and does not constitute legal advice and is not intended to form an attorney client relationship. Please contact your Sheppard Mullin attorney contact for additional information.*