Recent HHS Announcement Further Expands Access to Telehealth, But Does CMS’ Final Rule Do the Same?

HHS Permits Out-of-State Telehealth Providers to Render Certain Services Nationwide
On December 3, 2020, the Department of Health and Human Services (“HHS”) announced a fourth amendment to its declaration under the Public Readiness and Emergency Preparedness Act (PREP Act). This fourth amendment, intended to expand access to COVID-19 countermeasures, authorizes healthcare personnel using telehealth to order or administer “Covered Countermeasures,” such as a diagnostic test that has received an Emergency Use Authorization (EUA) from the Food and Drug Administration (FDA), for patients in a state other than the state where the healthcare personnel are already permitted to practice. 
Most significantly, if a person is authorized under the HHS PREP Act declaration to order or administer Covered Countermeasures by means of telehealth, state law that prohibits or effectively prohibits such a person from doing so will be preempted. 
It is important to underscore that the HHS amendment, which is effective nationwide, applies only to the provision of Covered Countermeasures, not to the general provision of services rendered through telehealth. However, numerous states have adopted out-of-state provider practice waivers for the duration of the public health emergency that permit providers to render telehealth in jurisdictions that they are not otherwise licensed.
Permanent Expansion of Telehealth Coverage for Rural Beneficiaries
Separately, on December 1, 2020, the Centers for Medicare and Medicaid Services (“CMS”) announced a permanent expansion of certain telehealth coverage for rural beneficiaries.
As previously noted by Frier Levitt, CMS changes to telehealth reimbursement requirements were spurred by the COVID-19 public health emergency (“PHE”), which triggered exponential growth and use of telehealth. Since the outset of the PHE, CMS has added 144 telehealth services such as emergency department visits, initial inpatient and nursing facility visits, and discharge day management services, that are covered by Medicare through the end of the PHE. Preliminary CMS data shows that between mid-March and mid-October 2020, over 24.5 million out of 63 million federal beneficiaries and enrollees have received a Medicare telehealth service during the PHE.
The final rule announced earlier this week adds more than 60 services to the Medicare telehealth reimbursement list that will continue to be covered after the end of the PHE. These additions allow beneficiaries in rural areas who are in a medical facility to continue to have access to telehealth services such as certain types of emergency department visits, therapy services, and critical care services. However, Medicare does not have the statutory authority to pay for telehealth for beneficiaries outside of rural areas or, with very limited exceptions, telehealth provided to a beneficiary at their home. 
In light of CMS’ recent announcement of the final rule change to telehealth reimbursement, a broader scope of services will be permanently reimbursable when provided to Medicare beneficiaries in accordance with Medicare guidelines. However, at the conclusion of the PHE, without legislation that permanently expands telehealth coverage for all beneficiaries, Medicare’s telehealth coverage availability will revert to the limited population of beneficiaries who are both (i) in a rural area and (ii) physically present at a designated originating site. Nevertheless, a larger number of telehealth services may be provided to beneficiaries who present in those areas.
How Frier Levitt Can Help
Frier Levitt has advised providers and technology companies on developing and restructuring telehealth business models to comply with applicable law while considering insurance reimbursement concerns unique to each arrangement. If you or your company is considering implementing telehealth, contact us to speak to an attorney who can comprehensively evaluate and recommend a compliant, sustainable model.
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