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Theresa Langley

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Theresa has experience representing hospital systems, physician groups and medical schools, and she advises clients on a variety of state and federal regulations, including the confidentiality of health information, fraud and abuse laws, Medicare and Medicaid reimbursement, and EMTALA.

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The Department of Health and Human Services (HHS) has announced its plan to end the Federal Public Health Emergency (PHE) for COVID-19 on May 11, 2023. Due to the COVID-19 pandemic, emergency declarations, legislation, and regulatory waivers across government agencies, including the Centers for Medicare & Medicaid Services (CMS), allowed for flexibility in the delivery of care to patients, including the expanded use of telehealth. Originally intended to conserve healthcare resources and prevent unnecessary exposure to COVID-19, the use of virtual care has exploded since the beginning of the pandemic to become an intrinsic, essential part of the healthcare delivery system. Now, at the end of the PHE, we examine the path forward for telehealth and the extent to which providers may continue to offer it to patients.

Recent legislative changes indicate that Congress is committed to continuing to allow patients to access telehealth services after the COVID-19 public health emergency (PHE) ends, but it is gathering more information before making such changes permanent. Comments from the U.S. Department of Health & Human Services (“HHS”) Secretary Xavier Becerra and the HHS Office of Inspector General (“OIG”) indicate that HHS is committed to expanding telehealth beyond the end of the PHE and that the OIG recognizes the long-term benefits of access to these services.

Healthcare Employers

The Centers for Medicare and Medicaid (CMS) expanded Medicare reimbursement for telehealth within the annual Physician Fee Schedule (PFS) final rule for 2021. During the pandemic Public Health Emergency (PHE), CMS has temporarily reimbursed many telehealth services. In light of the success of unprecedented telehealth utilization during the PHE, more than 60 services have been formally added to the Medicare telehealth list which will endure beyond the end of the PHE.

HIPAA Regulations

On October 29, 2020, HHS extended the effective date of compliance for the “Information Blocking” final rule promulgated as part of the 21st Century Cures Act (Information Blocking Rule). The Information Blocking Rule, which was set to take effect on November 2, 2020, prohibits health care providers, IT developers, and health information exchanges from unreasonably interfering with the access, exchange, or use of electronic health information (EHI). We previously discussed the practice of information blocking and the eight exceptions in our blog post Information Blocking: Ready or Not, Here it Comes!.

Centers for Medicare & Medicaid Services (CMS) has further expanded the list of telehealth services that Medicare Fee-For-Service will pay for during the COVID-19 public health emergency (PHE) as of October 14, 2020. CMS is adding 11 new services to the Medicare telehealth services list and will begin paying eligible practitioners who furnish these services immediately and through the end of the PHE. The new telehealth services include neurostimulator analysis and programming services, and cardiac and pulmonary rehabilitation services.

Telehealth

The use of telehealth has become indispensable across the country in recent months due to the COVID-19 public health emergency (PHE) and Centers for Medicare and Medicaid Services (CMS)’s temporary expansion of payment for telehealth services. CMS reports that virtual visits for Medicare beneficiaries have jumped from approximately 14,000 per week pre-PHE to almost 1.7 million in the last week of April.

Centers for Medicare & Medicaid Services (CMS) held a Special Open Door Forum that was open to the public on April 8, 2020. CMS has been working to address the COVID-19 pandemic through 1) increasing hospital capacity, 2) rapid expansion of the healthcare workforce, 3) relaxing health care administrative requirements, and promoting the use of telehealth, which this call was focused on. The call provided an opportunity for health care providers to ask specific questions and express concerns about telehealth and Medicare reimbursement.

Stethoscope and Tablet_600x600-2On March 17, 2020, U.S. Department of Justice, Drug Enforcement Agency (DEA) released guidance clarifying that restrictions under the Ryan Haight Act (the Act) are removed in response to the COVID-19 pandemic, allowing health care practitioners to prescribe controlled substances to patients through the use of telemedicine without any “in-person medical evaluation.” The Act generally prohibits practitioners from dispensing controlled substances through the internet without an in-person evaluation, unless an applicable exception is met. One exception to the Act occurs in the event of a public health emergency, which was triggered when HHS Secretary Alex Azar declared an emergency in response to COIVD-19 effective January 31, 2020. Practitioners now have the go-ahead to prescribe controlled substances through telemedicine technology without compliance with the Act’s requirements, but only for the duration of the public health emergency due to COVID-19.

On March 17, 2020, President Trump announced the expansion of Medicare telehealth coverage to allow providers to virtually visit with Medicare beneficiaries amid the COVID-19 pandemic. The telehealth benefits expansion is in accordance with the President’s emergency declaration under the Stafford Act and the recently passed Coronavirus Preparedness and Response Supplemental Appropriations Act. By expanding telehealth benefits for Medicare beneficiaries, the Trump administration hopes to alleviate pressure on healthcare facilities that deal with urgent cases and ensure that elderly beneficiaries may seek care while minimizing exposure to the virus.

Senate Bill 1264, which recently passed during the 86th Texas legislative session, places restrictions on certain out-of-network providers regarding the practice known as “balance billing” and establishes a process through which health plans and providers may resolve payment disputes. The bill is effective September 1, 2019 and applies to services and supplies provided on or after January 1, 2020.

I.  Balance Billing and SB 1264

The term “balance billing” refers to when a healthcare provider bills a patient for the difference between the reimbursement provided by the patient’s health insurance and the amount charged by the provider. SB 1264 places restrictions on balance billing by out-of-network (OON) providers of emergency services, facility-based services provided at an in-network healthcare facility, and lab and diagnostic imaging services that are related to an in-network service. The law disallows these providers from billing a patient for an amount greater than the applicable copayment, coinsurance, and deductible under the health plan based on the initial amount determined to be payable by the plan, or if applicable, a modified amount determined under the plan’s appeal process.