On May 8, 2020, the Centers for Medicare and Medicaid Services (“CMS”) published a regulation exercising additional flexibility relating to payment and services under the Medicare and Medicaid programs in response to the novel coronavirus (“COVID-19”) Public Health Emergency. On April 30, 2020, CMS issued additional blanket waivers for health care providers during the COVID-19 emergency, under the authority of Section 1135 of the Social Security Act. The Interim Rule and applicable guidance impact FQHCs chiefly by making it possible for FQHCs to bill the Medicare program during the COVID-19 emergency for services furnished via audio-only phone.
Prior to the COVID-19 emergency, Section 1834(m) of the Social Security Act permitted certain distant site providers (eligible physicians and practitioners) to submit a claim for telehealth services furnished through an interactive telecommunications system to an eligible patient if the patient is located at certain originating sites that met geographic requirements. Each year, CMS issues a list of qualifying Medicare “telehealth services.” Rather than provide these services in-person, the distant site provider or practitioner furnishes these services through an interactive telecommunications system that requires “audio and video equipment permitting two-way, real-time interactive communication between the patient and the distant site physician or practitioner.” According to CMS, a FQHC did not qualify as a distant site provider; as a result, FQHCs as a provider type were not permitted to furnish and bill Medicare for distant site telehealth services.
In March 2020, Congress enacted two laws that allowed HHS to relax Medicare telehealth rules during the COVID-19 emergency. CMS followed suit by issuing a new regulation, as well as numerous policy guidances increasing providers’ flexibility in providing Medicare services through telehealth. To further reduce barriers to virtual services during the COVID-19 emergency, the new Interim Rule issued on May 8 liberalizes the rules regarding telehealth technology requirements situations and expands the types of practitioners who may furnish telehealth services under Medicare.
- Adding Telephonic Evaluation and Management Services to “Telehealth Services” List
In the Interim Rule, CMS adds the use of audio-only telephonic evaluation and management (E/M) services (CPT codes 99441-99443) as covered Medicare telehealth services during the COVID-19 public health emergency. In a regulation issued in April 2020, CMS authorized physicians and practitioners to bill for these telephonic services independently under the Physician Fee Schedule, but CMS had declined to include the associated codes in the covered Medicare “telehealth services” list. Since FQHCs/RHCs do not bill Medicare off the Physician Fee Schedule, the April regulation did not enable FQHCs/RHCs to bill Medicare for telephonic E/M services. However, now that these services are included within “telehealth services,” and FQHCs/RHCs are recognized as telehealth distant sites for the COVID-19 emergency period, FQHCs/RHCs may furnish audio-only telephonic E/M services for the duration of the emergency period.
Additionally, CMS explained in the regulation that it is exercising enforcement discretion by allowing physicians and practitioners to provide audio-only telephonic evaluation and management (E/M) services to both new and established patients during the COVID-19 emergency period.
It is important to note the Medicare limitations relating to these services. An audio-only telephonic E/M service may not originate from a related E/M service provided in the previous 7 days; nor may it lead to a related E/M service or procedure within the subsequent 24 hours or soonest available appointment. In addition, the codes are appropriate only when the physician or practitioner, using audio-only telephone, engages in medical discussion with the patient that is similar to the discussion that would occur in an office E/M service.
- Waiver of the Visual Component of the Technology Requirements for Telehealth Services Under Certain Situations
CMS also issued a new set of blanket waivers under Section 1135 of the Social Security Act, COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers, on April 30. For the duration of the COVID-19 emergency period, CMS waived the requirement, normally applicable to Medicare telehealth services under federal regulations, that the telehealth communications technology include both audio and visual components. A variety of services covered under CMS’ approved Medicare telehealth services list, including telephonic E/M services, behavioral health counseling, and others, may be provided using audio-only technology, according to CMS’ recent issuances. However, all other covered Medicare telehealth services still require the use of both audio and video technology permitting two-way, real-time interactive communication.
- Expanding the List of “Telehealth Services” Providers
CMS’ April 30 waivers under Section 1135 also included a waiver of the provision of the federal regulations limiting the types of practitioners who may bill Medicare as telehealth distant site providers. CMS will allow all health care professionals eligible to bill Medicare for their professional services to furnish covered Medicare telehealth services. CMS specified that as a result, physical therapists, occupational therapists, speech language pathologists, and others may receive payment for Medicare telehealth services. This appears to be the case for FQHCs and RHCs billing Medicare for distant site telehealth services during the COVID-19 emergency period, as well as other types of providers, notwithstanding federal rules that limit the types of clinicians’ whose services count as billable Medicare FQHC/RHC encounters.
These changes have a retroactive effective date of March 1, 2020 through the end of the emergency declaration.
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If you have any questions about this update or other matters, please contact Susannah Vance Gopalan (Partner), Brittney Hall (Law Clerk), or call (202) 466-8960.
 CMS, Medicare and Medicaid Programs, Basic Health Program, and Exchanges; Additional Policy and Regulatory Revisions in Response to the COVID– 19 Public Health Emergency and Delay of Certain Reporting Requirements for the Skilled Nursing Facility Quality Reporting Program, 85 Fed. Reg. 27,550 (May 8, 2020) available at: https://www.govinfo.gov/content/pkg/FR-2020-05-08/pdf/2020-09608.pdf.
 42 U.S.C. § 1395m(m).
 42 C.F.R. § 410.78(a)(3).
 Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020, Pub. L. No. 116-123 (Mar. 6, 2020); Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116-136 (Mar. 27, 2020). For more information regarding telehealth flexibilities established through these laws, please see: Senate-Approved CARES Act Would Provide Temporary Medicare Telehealth “Fix” for Federally Qualified Health Centers; CMS Expands FQHCs’ Flexibility to Serve Patients Using Technology-Based and In-Home Services under Medicare During the Coronavirus Emergency.
 CMS, Medicare and Medicaid Programs; Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency, 85 Fed. Reg. 19,230 (Apr. 6, 2020) available at: https://www.govinfo.gov/content/pkg/FR-2020-04-06/pdf/2020-06990.pdf. CMS, RHC & FQHC Flexibilities During COVID-19 Public Health Emergency, MLN Matter No. SE20016 (Apr. 17, 2020; updated Apr. 30, 2020) available at: https://www.cms.gov/files/document/se20016.pdf.
 CMS, Medicare and Medicaid Programs; Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency, 85 Fed. Reg. 19,230 (Apr. 6, 2020) available at: https://www.govinfo.gov/content/pkg/FR-2020-04-06/pdf/2020-06990.pdf.
 Id. at 27,590.
 42 C.F.R. § 410.78(a)(3).
 42 U.S.C. § 1395m(m)(4)(E). 42 C.F.R. § 410.78(b)(2).
 CMS, COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers (Apr. 30, 2020) available at: https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-waivers.pdf.