Telehealth Expansion in Response to COVID-19

March 26, 2020

On March 13, 2020, President Trump announced an emergency declaration, allowing the Centers for Medicare and Medicaid Services (“CMS”) to expand Medicare’s telehealth benefits under the Coronavirus Preparedness and Response Supplemental Appropriations Act. In Texas, Governor Abbott declared a disaster and approved a request from the Texas Medical Board (“TMB”) to temporarily suspend Section 111.005 (a)-(b) of the Texas Occupation Code and Section 174.6 (a)(2)-(3) of the Texas Administrative Code. As a result of the emergency declaration and the suspension of those Texas rules, telehealth has been expanded to new patients on new mediums, providing for a more efficient means for physicians to treat patients.

At home care : Healthcare providers are now able to offer telehealth services, including common office visits, mental health counseling, and preventive health screenings, to Medicare beneficiaries in any healthcare facility, in addition to the Medicare beneficiary’s home. Where in the past Medicare beneficiaries typically needed to be in a healthcare facility to receive reimbursable telemedicine services, they can now receive (and providers can be reimbursed for) services the beneficiaries receive at home.

Technology : The HHS Office for Civil Rights (“OCR”) announced that it will waive potential penalties for noncompliance under the Health Insurance Portability and Accountability Act (“HIPAA”) for good faith uses of telehealth during the COVID-19 pandemic emergency. As such, mediums such as FaceTime may be utilized for telemedicine. The provision does not apply to public platforms, however, so TikTok, Twitch, Facebook Live, Periscope, or other public facing platforms may not be used.

Cost sharing : Similarly, the HHS Office of Inspector General (“OIG”) notified physicians and other practitioners that they would not be subject to administrative sanctions for reducing or waiving cost-sharing obligations which Federal health care program beneficiaries may owe for telehealth services furnished during the COVID-19 pandemic.

Telephone consultations are permitted to establish the practitioner-patient relationship . The use of a telephone only may be used to establish a physician-patient relationship for diagnosis, treatment, ordering of tests, and prescribing for all conditions. The encounter must be initiated by the patient and the verification of the patient’s identity is paramount. Further, the applicable standard of care must be met in all instances, and medical record standards do not change. Under the CMS emergency rules, telehealth visits that would be coded under office or other outpatient visits, or other telehealth consultations codes, can occur with both established patients and new patients. However, virtual check-ins (i.e. brief 5-10 minute check in via telephone to decide whether an office visit is needed) and e-visits (which occur through an online portal) should only occur with established patients.

Services must otherwise be billable. To be eligible for payment, telehealth services must be services that would otherwise be billable if provided in person. Telephone calls with office staff and calls for administrative purposes are not billable services.

For more information, see the full press releases, available here and here . CMS recently released two telehealth toolkits which contain links to guidance and information on telehealth and telemedicine intended to help health care providers learn more about telehealth so they can provide virtual services to treat patients during this outbreak. Please visit here for the full telehealth toolkit for general practitioners and here for the full toolkit for end-stage renal disease (ESRD) providers. For more information on the Texas rules, see this FAQ from the TMB.

As always, we are available to advise and assist you at every turn. Please do not hesitate to reach out to us with any questions.

Weaver Johnston & Nelson, PLLC focuses almost exclusively on healthcare matters. Our attorneys assist hospitals, physicians, ambulatory surgery centers, free standing ERs, pharmacies and other providers on their day-to-day operational, transactional and regulatory compliance needs.

Weaver Johnston & Nelson, PLLC
10440 N. Central Expressway, Suite 1400
Dallas, Texas 75231
Phone: (214) 705-3515 
Ashley E. Johnston
Phone: (214)763-8296
Board Certified – Health Law
Texas Board of Legal Specialization
Joshua M. Weaver
Phone: (214) 705-3516
Board Certified – Health Law
Texas Board of Legal Specialization
Joseph E. Nelson
Phone: (214) 705-3907
Board Certified – Health Law
Texas Board of Legal Specialization
Steve Litke
Phone: (972)427-7685
Chris Reed
Phone: (214)705-3935
Kevin Mitchell
Phone: (469)680-9049
Shannon Cahalan
Phone: (214)938-9898
Stephanie Toth
Phone: (469)480-9729
Rachael Nelson Gearing
Phone: (469)680-9609
Vicki Wanjura
Phone: (214)587-6026
Paul Wehrmann
Phone: (214)957-0919