The Telehealth Services During Certain Emergency Periods Act of 2020 (the “Act”) is part of the larger bipartisan Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020.  The Act gives the Secretary of the Department of Health and Human Services (HHS) the authority to waive certain existing limitations on Medicare coverage and payment for telehealth services furnished to Medicare beneficiaries, making it easier for seniors to receive telehealth services from their homes and through the use of their smartphones.

The Act includes the following waivers:

1. The originating site requirement.  Medicare will pay for telehealth services provided to patients located in qualifying rural areas if the beneficiary is located at one of eleven qualifying originating sites.  The Act includes a waiver of the originating site requirements, which would allow Medicare beneficiaries to receive telehealth services while at home.
2. The restriction on the use of a telephone.  Medicare does not currently allow telehealth services to be furnished using telephones.  The Act includes a waiver of the restriction on telephones, if the telephone has audio and video capabilities that are used for two-way, real-time interactive communication.  Additionally, effective immediately, the HHS Office for Civil Rights will exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the public health emergency.

The waivers apply only to telehealth services furnished in an emergency area during an emergency period by a qualified provider.  An “emergency area” is a geographical area in which, and an “emergency period” is the period during which, there exists:

• an emergency or disaster declared by the President pursuant to the National Emergencies Act or the Robert T. Stafford Disaster Relief and Emergency Assistance Act; and 
• a public health emergency declared by the Secretary of HHS.  

A “qualified provider” is a provider that either:

• furnished a covered item or service to the Medicare beneficiary within three years of the date the telehealth service was furnished; or 
• is in the same practice (billing under the same tax ID) as a provider who meets this requirement.  It is important to note, however, that in a CMS guidance document published on March 17, 2020, CMS stated that HHS will operate under a policy of “enforcement discretion” for Medicare telehealth services provided under the Act, and further stated that HHS will not conduct audits to determine whether a prior relationship existed for claims submitted during the emergency.

The Act applies only to coverage of telehealth services provided to Medicare beneficiaries.  Healthcare providers seeking to use telehealth in response to COVID-19 should also consider state laws and regulations , including those laws and regulations that govern professional licensure, scope of practice, standard of care, patient consent and reimbursement requirements for Medicaid beneficiaries.

For additional web-based resources regarding evolving changes to Medicare policies, visit Medicare’s current emergencies webpage.

Christopher P. Dean and Leslie Cumber are lawyers in Miles & Stockbridge’s Health Care Practice and members of the Coronavirus Task Force, a cross-disciplinary team that can quickly and efficiently deploy talent from relevant practices to address concerns and issues in real time.

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