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.

A teaching hospital in Connecticut affiliated with Yale Medical School is facing age and disability discrimination allegations after imposing mandatory medical testing for doctors 70 and older who seek medical staff privileges.  The U.S. Equal Employment Opportunity Commission (“EEOC”) has filed suit against Yale New Haven Hospital, claiming that subjecting older physicians to medical testing before renewing their staff privileges violates anti-discrimination laws.

According to the EEOC, the hospital’s “Late Career Practitioner Policy” dictates that medical providers over the age of 70 must undergo both neuropsychological and ophthalmologic examinations – a policy the federal agency claims violates both the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act (“ADEA”).  The EEOC claims that the individuals required to be tested are singled out solely because of their age, instead of a suspicion that their cognitive abilities may have declined. The agency further charges that the policy also violates the ADA because it subjects the physicians to medical examinations that are not job-related or consistent with business necessity.

In this “Hospice Insights: The Law and Beyond” episode, the hospice team shares insights on how to manage and succeed in responding to additional documentation requests (“ADR”) stemming from Targeted Probe and Educate (“TPEs”) projects. We discuss the unique features of TPE and winning strategies for responding. Check out the Hospice Resource Library for tips…

We are thrilled both to welcome four new hospice attorneys to Husch Blackwell and for the launch of their new podcast “Hospice Insights: The Law and Beyond.”

In this first episode, Meg Pekarske, Bryan Nowicki,  Erin Burns and Andrew Brenton discuss the exciting opportunities resulting from their move to Husch Blackwell. The episode is available…

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. 

The Texas Comptroller issued an advisory opinion reversing a longstanding policy relating to Texas sales taxation of medical billing services that will impact all Texas medical management and medical billing companies. Originally set to be effective January 1, 2020,  the Comptroller last week delayed the implementation of the new position until April 1, 2020. However, the opportunity exists to work with the Comptroller to amend Texas’ tax law in the 2021 session of the Texas Legislature and prevent the new position from being implemented.

The potential impact of this policy cannot be understated. For both third-party medical billing companies and Texas medical management companies (even those wholly-controlled by the physicians, dentists, and other medical professionals it manages), the scope of “medical billing services” and the extent to which consideration flows for such services needs to be analyzed and a determination made, if required, to begin withholding and charging Texas sales tax on the required component next year. For example, the need to separately account for and state the taxable versus nontaxable component of any agreement that provides for a lump-sum fee is important (the “separately stated” strategy for sales tax compliance). With many management agreements, a fixed amount is paid to cover a broad spectrum of services.

Players in the healthcare industry continue to identify ways to use technological innovations to decrease overhead expenditures and increase bottom lines.  AI software to automatize EHR documentation in place of human input, mobile apps and portals to grant patients immediate access to their medical records, and blockchain technology to accelerate claims adjudication are some examples. In particular, commercial health insurers have employed various cost containment measures to minimize non-claim expenses. One measure involves the use of virtual credit cards, or VCCs, in lieu of traditional payment methods to reimburse providers for services rendered to plan enrollees. A VCC is linked to the payer source’s credit card account but generates a new 16-digit single-use number each time the physical card’s 16-digit number is used. Payers send providers the number with instructions to access and process these payments electronically.