Trump administration opens up access to telehealth services during coronavirus outbreak

Seema Verma
Providers can provide telehealth services through widely available nonpublic facing apps, such as FaceTime or Skype, without the risk of running afoul of HIPAA laws, according to officials from the Department of Health and Human Services' Office for Civil Rights. “These changes allow seniors to communicate with their doctors without having to travel to a healthcare facility so that they can limit the risk of exposure and spread of this virus," said CMS Administrator Seema Verma (pictured). (HIMSS)

The Department of Health and Human Services (HHS) is waiving certain Medicare telehealth payment requirements to enable telehealth services to be provided in all settings, including a patient's home, it was announced Tuesday.

The waiver also enables Medicare beneficiaries to use telehealth services even if they aren’t in a rural community.

Clinicians can bill immediately for dates of service starting March 6. Telehealth services are paid under the Physician Fee Schedule at the same amount as in-person services, according to the Centers for Medicare & Medicaid Services (CMS).

“These changes allow seniors to communicate with their doctors without having to travel to a healthcare facility so that they can limit the risk of exposure and spread of this virus," said CMS Administrator Seema Verma. "Clinicians on the frontlines will now have greater flexibility to safely treat our beneficiaries.”

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On March 13, President Donald Trump announced an emergency declaration under the Stafford Act and the National Emergencies Act. CMS is expanding Medicare’s telehealth benefits under the 1135 waiver authority and the Coronavirus Preparedness and Response Supplemental Appropriations Act. 

A range of healthcare providers such as doctors, nurse practitioners, clinical psychologists and licensed clinical social workers will be able to offer telehealth to Medicare beneficiaries. And services offered through telehealth including common office visits, mental health counseling and preventive health screenings, CMS said.

"This change will help prevent vulnerable beneficiaries from unnecessarily entering a healthcare facility when their needs can be met remotely," CMS officials said.

The HHS Office for Civil Rights (OCR) also announced it will waive potential penalties for HIPAA violations against healthcare providers that serve patients through widely available communication apps such as FaceTime or Skype.  

OCR officials said the agency will exercise its enforcement discretion when providers use apps "in good faith" for any telehealth treatment or diagnostic purpose, regardless of whether the telehealth service is directly related to COVID-19.

"In support of this action, OCR will be providing further guidance explaining how covered health care providers can use remote video communication products and offer telehealth to patients responsibly," OCR said.

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"We are empowering medical providers to serve patients wherever they are during this national public health emergency," said OCR Director Roger Severino in a statement. "We are especially concerned about reaching those most at risk, including older persons and persons with disabilities."

Matt Fisher, a Mirick O'Connell health privacy lawyer, said the new guidance sets out OCR’s position that it will not seek to enforce what would normally be a HIPAA violation by using a videoconferencing service that does not sign a business associate agreement or otherwise does not meet HIPAA standards. 

"The enforcement waiver discretion only applies during the period of the COVID-19 emergency though, so not permanent. It is also not entirely clear what happens from a privacy perspective if data are retained by one of the videoconferencing services past this period of non-enforcement," Fisher said.

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Providers are encouraged to notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications, OCR said.

Officials noted that Facebook Live, Twitch, TikTok and similar video communication applications are public-facing and should not be used to provide telehealth services.

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