Change is fast-paced in the world of COVID-19. On Monday, March 30th, CMS released an interim final rule along with hospice specific waivers. In this episode, your Hospice Team discusses these recent developments and their impact on telehealth, face-to-face encounters, virtual visits and Medicare appeals and audits.

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In this episode, your Hospice Team shares insights on operationalizing recent government guidance for hospices facing coronavirus obstacles. We discuss the role of virtual visits, how to use telehealth, and the practical impact of the Medicare appeal waiver. Listen to the full episode here: https://bit.ly/2JmhkMV

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.

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As the novel coronavirus outbreak continues, the federal government and commercial health insurers have taken significant steps to increase Americans’ access to treatment and testing. In the past week, the federal government and private insurers have issued a number of guidance documents expanding coverage and payment requirements in an effort to minimize the spread of the virus. As with any changes in coverage and reimbursement, healthcare providers offering telehealth services should carefully review these changes and take steps to ensure that all regulatory and coverage requirements are met prior to submitting claims for reimbursement.

I. Medicare

On March 6, 2020, the bipartisan Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020 (“Coronavirus Appropriations Act”) was signed into law authorizing federal spending to combat the ongoing coronavirus outbreak in the United States. This Act, among other things, gives the United States Department of Health and Human Services’ (“HHS”) secretary the authority to temporarily waive certain Medicare requirements for telehealth services.

The Centers for Medicare and Medicaid Services (“CMS”) currently reimburses a limited set of telehealth services provided to Medicare beneficiaries subject to certain criteria under section 1834(m) of the Social Security Act. Generally, the patient receiving telehealth services must be located at one of eight “originating sites”, which include hospitals, physicians’ offices, and rural health clinics. In addition, the originating site must meet certain geographic requirements which have essentially limited the availability of telehealth to patients in rural areas. These requirements have long posed a hurdle to the expansion of telehealth despite the industry’s demand for lessened restrictions. However, with the rapid spread of the coronavirus and the possibility of facing large scale isolations and quarantines, lawmakers have signaled their willingness to expand access to telehealth to fight against this public health crisis.

Within the Coronavirus Appropriations Act is the Telehealth Services During Certain Emergency Periods Act of 2020, which sets forth the waiver authority for the secretary of HHS regarding the certain telehealth requirements. Under the Telehealth Services During Emergency Periods Act, the secretary is authorized to temporarily waive the originating site and geographic requirements for telehealth services provided to Medicare beneficiaries located in an identified “emergency area” during an “emergency period” when provided by a qualified provider. To qualify for the waiver, the provider must have treated the patient within the previous three years or be in the same practice (i.e., as determined by tax identification number) of a practitioner who has treated the patient in the past three years. The bill also lessens the telecommunications requirements by allowing Medicare beneficiaries to receive telehealth services via their smartphones (i.e., telephones that allow for real time, audio-video interaction between the provider and the beneficiary). Because the federal government has declared a nationwide public health emergency as a result of the coronavirus, the waiver will apply across the country until there is no longer a nationwide public health emergency.
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There is a trend in healthcare toward customer-centrism—placing the interests of the consumer before all other considerations.  The trend may be slow in its growth, but for those healthcare organizations that embrace the idea and obsess over improving the consumer’s experience throughout their healthcare journey, there can be a payoff.  But improving consumer experience in healthcare takes a commitment and courage to venture outside of traditional comfort zones.

For years, the polarized debate over healthcare policy has included advocacy for a more consumer-directed healthcare system.  The argument in favor says consumers and providers alike must have more skin in the game—financial responsibility—and better information with which to make more consumer-like decisions.  For providers, the “skin” means risk-based contracts.  For consumers, it means higher deductibles and other out-of-pocket cost exposure.  There has been significant movement in this direction. 
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With the global telehealth market projected to more than quadruple in value over the next five years, even slow-moving government payors have responded to the pressure to expand reimbursement options for telemedicine services. But reimbursement woes continue to top the list of concerns voiced by providers, and the U.S. Department of Health and Human Services, Office of Inspector General (“OIG”) is keeping a watchful eye on reimbursement-related growing pains. On April 30, 2018, OIG released a report that identifies the impact of some of these growing pains on Medicare claims payments.
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On May 27, 2017 the Texas Governor signed SB 1107 into law, making certain telehealth arrangements possible after the Texas Medical Board imposed limitations on telehealth services in June 2015.  Specifically, SB 1107 adds new §§111.005-7 to the Texas Occupations Code allowing a physician to prescribe drugs as part of a telehealth encounter involving only telephonic or text-based communication between the physician and patient if:  (i) the physician has access to patient medical records and uses either clinically relevant photographic or video images or the patient’s relevant medical records; and (ii) the physician provides the patient with guidance on appropriate follow-up care and, if the patient consents and has a primary care physician, provides to the patient’s primary care physician within 72 hours after the encounter a medical record or other report containing an explanation of the treatment provided by the physician, including the physician’s evaluation, analysis, or diagnosis.
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flag_160540827This is the seventh article in our series on the effect of a “slow repeal” of the ACA. This week’s discussion focuses on the potential impact on healthcare technology.

Industry experts are predicting that a slow repeal of the ACA will have very little, if any, negative impact on healthcare technology. Healthcare technology grew at an unprecedented pace under the ACA, in part because the ACA contains provisions which provide healthcare technology with incentives to develop and implement new systems aimed at increasing efficiency. Despite the significant amount of uncertainty with a slow repeal of the ACA for many players in the healthcare industry, healthcare technology appears to be poised for continued growth through value-based care, telemedicine, and the increased need for interoperability.


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abaEmerging Issues in Healthcare Law is coming to the Big Easy. The American Bar Association’s 18th annual conference is slated for New Orleans March 8-11.

Husch Blackwell is a platinum sponsor of this event featuring the most emergent topics facing the healthcare bar. As the industry faces changes and continues to grow under healthcare reform and enforcement, this conference allows attendees a perfect opportunity to stay ahead of the developments.
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