Over the last 2 weeks, the Trump Administration and the U.S. Congress have taken a series of emergency actions, which have lowered the barriers to the use of telehealth and promote its adoption during this national emergency. With the directive of social distancing and minimizing in-person visits to medical offices and emergency rooms, the following actions were taken.
On March 6, 2020, President Trump signed into law the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (“CPRSA”), which authorized the US Department of Health and Human Services (“HHS”) to waive certain limitations on Medicare coverage and payment for telehealth services furnished to Medicare beneficiaries. Specifically, under a 1135 waiver pursuant to the Social Security Act, CPRSA and the HHS Secretary have waived and now permit the following uses of telehealth:
- Allowing telehealth to be provided via a smartphone so long as the communication includes both audio and video components.
- Waiver of the CMS originating site requirement and permitting Medicare reimbursement for telehealth services wherever rendered throughout the country in light of President Trump's declaration of a national emergency on March 13, 2020. No longer will Medicare limit reimbursement for medical services solely in underserved rural areas.
- Providers who use telehealth must continue to be licensed and credentialed in accordance with state law (i.e. the provider must be licensed by the jurisdiction where his or her patient is located at the time of service).
Consistent with such emergency powers, on March 19, 2020, HHS’s Office of Civil Rights (“OCR”), the agency responsible for enforcement of HIPAA, announced that it was using its discretion in enforcing HIPAA violations during the pendency of this national emergency. Specifically, the OCR is encouraging the use of various audio/visual technology in connection with telehealth visits which may not be HIPAA compliant (i.e. Skype/Facetime). The OCR will exercise its discretion in enforcement and is likely not to enforce HIPAA violations so long as it is in connection with the telehealth delivery of health care services to patients, whether or not for treatment of COVID 19.
We will continue to monitor regulatory changes in the upcoming weeks as this national emergency continues to unfold.
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