The SUPPORT for Patients and Communities Act (“the Act” or “the SUPPORT Act”), signed into law by President Trump on October 24, 2018, is intended to combat the growing opioid crisis in the United States. The Act aims at preventing opioid addiction and misuse and enhancing access to care for those who have substance use disorders.

A key aspect of the Act is the expanded Medicare coverage of telehealth services to beneficiaries in their home (see Section 2001 of the Act). Currently, and historically, Medicare has restricted coverage of telehealth services to beneficiaries who reside within certain geographic rural areas and who seek such services at specific “originating sites” (patient beneficiary’s home is not included in the current Medicare definition for “originating site”). The Act amends 42 U.S.C. § 1395m(m) to eliminate these coverage restrictions for “an eligible telehealth individual with a substance use disorder diagnosis for purposes of treatment of such disorder or co-occurring mental health disorder, as determined by the Secretary [of Health and Human Services].” With this amendment in place, health care providers may now be reimbursed for providing eligible substance use disorder services to Medicare beneficiaries in their homes via telehealth. Although the Act does not provide for any “facility fee” reimbursement for telehealth services provided to beneficiaries in their homes, the Act requires reimbursement be provided to physicians and other health care practitioners furnishing these services at the same rate as they would otherwise receive if providing the same services in-person.

It is important to note that while Section 2001 of the Act takes effect on July 1, 2019, it authorizes the Secretary of the U.S. Department of Health & Human Services (“Secretary”) to implement these amendments immediately by creating a final interim rule.  The Act also mandates that the Secretary report on the impact of this legislation on: (1) the health care utilization (and in particular, emergency department visits) related to substance use, and (2) “health outcomes related to substance use disorders,” including opioid overdose deaths. The Act provides $3 million to the Centers for Medicare & Medicaid Program Management Account in order to carry out these reporting requirements, which must be completed within five years.

Another key aspect of the Act mandates that the U.S. Attorney General (“Attorney General”) promulgate final regulations that specify (1) “the limited circumstances in which a special registration under this subsection may be issued” and (2) “the procedure for obtaining a special registration.” Under 21 U.S.C. 831(h), as amended by The Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (“Ryan Haight Act”), this special registration would allow health care providers to prescribe controlled substances via telemedicine when legitimately necessary, including when an in-person evaluation is not possible. As discussed in one of our recent TechHealth Perspectives blog posts, despite the statutory mandate in the Ryan Haight Act passed more than eight years ago, the Attorney General has not yet issued any regulations or guidance on how to obtain this special registration. The Drug Enforcement Administration (“DEA”), the federal agency delegated authority to promulgate these regulations by the Attorney General, has also not promulgated any regulation or other guidance addressing special registration. The SUPPORT Act gives the Attorney General until October 24, 2019, to promulgate its final regulations on this matter.

Epstein Becker & Green plans to discuss the Act’s numerous provisions in greater detail in future Client Alerts.

The U.S. Department of Health and Human Services’ Office of Inspector General (OIG) recently released a report revealing that during OIG’s 2014 and 2015 audits of telehealth claims, more than half of the professional telehealth claims paid by the Medicare program did not have matching originating-site facility claims.

According to the report, Medicare telehealth spending increased from $61,302 in 2001 to $17,601,996 in 2015. Among the 191,118 Medicare paid distant-site telehealth claims (totaling $13,795,384), the OIG randomly sampled 100 of those claims and obtained supporting documentation to determine whether the paid telehealth services were allowable under the Medicare requirements. Approximately a third of the claims did not meet certain Medicare requirements, including:

  • 24 claims were unallowable because beneficiaries received services at non-rural originating sites that did not fall under the demonstration program exception. For proper telehealth Medicare reimbursement, beneficiaries must be located in either: (1) an HPSA that is outside of an MSA or within a rural census tract of an MSA, as of December 31 of the preceding year, or (2) a county that is not included in an MSA as of December 31 of the preceding year. Providers should check whether their patients’ location qualify as an originating site via the Medicare Telehealth Payment Eligibility Analyzer.
  • 7 claims were billed by ineligible institutional providers. Institutional facilities at a distant site may bill Medicare only if: (1) the facility is a CAH that elected the Method II payment option and the practitioner reassigned his or her benefits to the critical access hospital (CAH) or (2) the facility provided medical nutrition therapy (MNT) services.
  • 3 claims were for services provided to beneficiaries at unauthorized originating sites. Telehealth services must be furnished to a beneficiary that is located in one of the following sites: the office of a practitioner, a hospital, a CAH, a rural health clinic, a federally qualified health center, a hospital-based or CAH-based renal dialysis center, a skilled nursing facility, or a community mental health center.
  • 2 claims were for services provided by an unallowable means of communication. Under the Federal regulations, telehealth practitioners must provide telehealth services using an interactive telecommunications system, which excludes telephone, fax, or email. However, CMS provides a carve-out for asynchronous store and forward technology for Federal telemedicine demonstration programs in Alaska and Hawaii.
  • 1 claim was for a non-covered service. Practitioners should refer to the CMS website for the list of telehealth services payable under the Medicare physician fee schedule. Changes to the list are made annually.
  • 1 claim was for services provided by a physician located outside the U.S. Telehealth services are only covered if those services are provided within the U.S.

The OIG largely cited that many of these claims should not have been approved and reimbursed in the first place. For example, the majority of claims related to unallowable geographical locations of the originating sites. Presently, Medicare Administrative Contractors (MACs) do not have a process of editing these types of errors because claim forms do not have designated field for the originating-site location. The claim forms also do not have a field determining the form of communication used by the practitioner. CMS officials stated that it would be unlikely that the forms would include such designations because those designations would not be applicable to non-telehealth practitioners who use the same claim forms.

The OIG recommended that CMS take the following actions:

  • Conduct periodic post-payment reviews for errors for which telehealth claims edits cannot be implemented;
  • Work with MACs to implement all telehealth claim edits listed in the Manual; and
  • Offer education and training sessions to practitioners on Medicare telehealth requirements and related resources.

To date, there have not been any reported cases of enforcement actions taken against telehealth practitioners and stakeholders. However, practitioners and stakeholders should be aware that qui tam actions under the False Claims Act (FCA) may be brought by whistleblowers. The first FCA case was brought in 2016 where a Connecticut mental health practice allegedly submitted false claims to Medicare for telehealth service provided to patients. The complaint alleged that the physician and mental health practice did not use interactive audio and video communications, but simply treated Medicare beneficiaries over the telephone. Although that settlement only amounted to $36,704, the recent OIG report should signal to telehealth practitioners and stakeholders that OIG is now aware and will most likely hold telehealth service providers more accountable for complying with both Federal and state telehealth laws and regulations.

Therefore, practitioners and stakeholders should familiarize themselves with Medicare telehealth requirements as they will most likely change in the next several months, seen most recently with the passage of the Bipartisan Budget Act of 2018, which expanded coverage of telehealth services under Medicare related to telestroke care, Medicare Advantage, and accountable care organizations.

One of the challenges to increasing Medicare coverage of telehealth services is amending the statutory language in the Social Security Act (42 U.S.C. § 1395m) to remove geographic and other limitations. The Congressional Budget and Impoundment Control Act of 1974 requires the Congressional Budget Office (“CBO”) to provide cost estimates of proposed legislation. These CBO scoring reports provide estimates on the spending and revenues associated with legislation, generally over the window of 10 years beyond the effective date of the legislation. Therefore, budgetary effects beyond the 10 year window from legislation (for example, aimed at preventing longer term health costs) would not be taken into account as part of the CBO scoring process. This limitation in the CBO scoring process is seen by proponents of expanding Medicare coverage of telehealth services as a significant inhibitor to passing transformative legislation because the CBO scores reflects the initial uptick in costs to the program from access to services without incorporating the total savings projected over the longer term of an individual’s lifespan.

A bipartisan group of senators introduced a bill (Preventive Health Savings Act, S. 2164) in November of 2017, that would affect how the CBO analyzes legislation related to disease prevention, which could have a positive impact on the CBO scoring expansion of Medicare coverage of telehealth services and affect the ability to move changes through the legislative process. A nearly identical bill (H.R. 2953) was introduced in the House of Representatives in the summer of 2017, the status of which is still pending.

The Preventive Health Savings Act would allow Congress to request a proposal be reviewed by the CBO for budgetary savings from preventive health services, beyond the existing 10 year window from legislation. As proposed in the bill, the CBO would be required to score proposals based on reviewing publicly available scientific studies of preventive health and preventive health services, which the legislation broadly defines as “an action that focuses on the health of the public, individuals and defined populations in order to protect, promote, and maintain health and wellness and prevent disease, disability, and premature death.” The bill also would allow the CBO to review the budget savings for preventive health services extending into an additional two decades beyond the traditional 10 year budget window beyond legislation.

Why is this important to telehealth? This bill, if passed into law, would require CBO to more accurately measure the benefits of preventive care. The U.S. incurs significant, but avoidable, costs related to the treatment of certain diseases and chronic care services, so preventive tools and services are beneficial as a means toward lowering such costs. Telehealth services are well suited to be used as tools that connect patients to their health care providers in order to prevent diseases from occurring or to help maintain health conditions in order to prevent existing conditions from worsening. However, the savings to an individual’s health care costs that are associated with disease prevention would not be measured to their full effect in a shorter term window, as compared to the longer term (i.e., 30 year) window that these bills propose.

Telehealth services offer health care providers the opportunity and the capability to reach broader Medicare beneficiary populations and to serve as disease prevention tools for these populations. Proponents of the bills believe that passage would allow the CBO to more accurately measure the financial savings associated with any legislation that is intended to broaden access by Medicare beneficiaries to telehealth services.

Pursuant to the 21st Century Cures Act of 2016, Congress mandated the Medicare Payment Advisory Commission (“MedPAC”) to provide a report to Congress by March 15, 2018, in which MedPAC has been asked to answer the following questions:

  1. Under the Medicare Fee-for-Service program (Parts A and B), what is the current coverage of telehealth services?
  2. Currently, what coverage do commercial health plans offer for telehealth services?
  3. In what ways can the Medicare Fee-for-Service program adopt some or all the telehealth service coverage presently found in commercial health plans?

Earlier this month, at the MedPAC public meeting, the Commission presented a general summary regarding the first of these three questions, specifically the Medicare Fee-for-Service program’s current coverage of telehealth services. MedPAC examined four different aspects of the Medicare Fee-for-Service program that currently address coverage of telehealth services: (1) the Medicare Physician Fee Schedule; (2) other Fee-for-Service payment models within the Medicare program (e.g., inpatient / outpatient hospital services); (3) the Medicare Advantage program; and (4) the Centers for Medicare & Medicaid Innovation initiatives.

Medicare Physician Fee Schedule (“PFS”). Presently, Medicare PFS coverage of telehealth services is the most constrained because of the concern of overutilization from volume incentive. Unlike other fee-for-service models utilized by the Medicare program (e.g., MA program, CMMI initiatives) there is no associated cost risk to providers who utilize telehealth services under the Medicare PFS (i.e., no fixed payment, no cap constraints); therefore, the Medicare PFS contains comparatively strict parameters that must be met in order for Medicare to provide reimbursement for telehealth services. For example, the Medicare PFS only covers telehealth services that originate in rural areas and that are performed at one of several specific types of facilities. Furthermore, the Medicare PFS only will cover two types of telehealth modalities, two-way video (synchronous), and store-and-forward (asynchronous) technology, and the latter of these only if services are provided to Medicare beneficiaries residing in Alaska or Hawaii. The Medicare PFS has designated telehealth FFS codes for limited physician services, including office visits, mental health services, substance abuse treatment, and pharmacy management services. Under the Medicare PFS telehealth services also may be included in larger fixed payments that resemble remote patient monitoring activities (e.g., transitional care management services, chronic care management services) as well as through bundled payments for such things as the 90-day global surgery bundle and payments for cardiac monitoring devices. Interestingly, because some of these services (despite being provided via telehealth modalities) are not part of the official Medicare PFS list of telehealth FFS codes, they are not constrained by the current Medicare PFS rules and requirements for provision of telehealth services (e.g., originating site rules).

Other Medicare Fee-For-Service (“FFS”) Payment Models. Within the Medicare program, various other FFS payment models exist for provision of services to beneficiaries, with respect to services including inpatient/outpatient hospital services, skilled nursing facilities (“SNFs”), inpatient rehabilitation facilities (“IRFs”), dialsysis facilities, and long-term acute care hospitals (“LTACHs”). In contrast to the Medicare PFS rules and requirements for provision of telehealth services, Medicare coverage of telehealth services under these other Medicare FFS payment models has been more flexible because both providers and health plans bear risk if the cost of a beneficiary encounter exceeds the fixed payment for that encounter. Under these Medicare FFS payment models, providers are incentivized to use telehealth services only if doing so would reduce the cost of providing the services. Although under most of these other Medicare FFS payment models, providers may include the costs associated with telehealth services costs on their annual cost reports as allowable costs, there are some exceptions to this general rule (specifically, home health agencies and hospice agencies) that may not include these costs on their annual cost reports.

Medicare Advantage (“MA”) Program. Under the MA program, payments to health plans are capitated and health plans must provide coverage for any telehealth services that are covered under the existing Medicare PFS, so as a result coverage for these services under the MA program also is constrained by the same PFS rules and regulations described above. However, by contrast, the MA program extends to these health plans the flexibility to finance coverage of additional telehealth services through a supplemental premium or their rebate dollars. Although the telehealth services offered by these health plans (as supplemental benefits) may not be built into the bids these health plans submit to the MA program, any savings from the health plans’ use of such services can be captured by the health plans in their required reporting to CMS. Similar to FFS, there is an incentive to use telehealth service if it reduces costs.

Center for Medicare and Medicaid Innovation (“CMMI”) Initiatives. Through the CMMI, selected pilot programs have been given waivers by CMS to incorporate the use of telehealth services beyond what is currently permitted through the Medicare PFS rules and regulations. For example, some accountable care organizations (“ACOs”), known as the “Next Generation ACOs”, have received CMMI waivers to use telehealth services in urban settings and/or beneficiaries’ homes (contrary to current Medicare PFS coverage rules and requirements). Other ACOs have received CMMI waivers allowing physicians to receive Medicare FFS payment rates for telehealth visits while the ACO remains at risk for beneficiaries’ total spending. Many of the telehealth initiatives made possible by these CMMI waivers have arguably created greater incentive for Medicare providers to utilize telehealth service if they can have the effect of curbing associated costs.

At the recent meeting MedPAC also reported, based on the limited data currently available, on beneficiary utilization of telehealth services under the Medicare PFS. According to MedPAC, in 2016 approximately 0.3 percent of all Medicare beneficiaries (for Part B) utilized telehealth services, amounting to approximately $27 million for just over 300,000 encounters in total. MedPAC noted that the most common telehealth services utilized by Part B beneficiaries in 2016 were basic office visits, mental health services, and follow-up care. Additionally, approximately 2,000 ESRD-related visits and 2,000 telestroke visits occurred in 2016. Although this utilization was comparatively low, MedPAC reported an increased use of telehealth services, mostly in subsequent nursing care, psychotherapy, and pharmacological management. According to MedPAC, between 2014 and 2016 the number of telehealth visits per 1,000 beneficiaries increased by approximately 79 percent, compared to an average 3 or 4 percent increase for all Medicare physician services within that same two-year period. Also, MedPAC noted that telehealth users were disproportionately dually eligible (for Medicare and Medicaid), located in rural areas, and dealing with chronic care conditions (e.g., mental health conditions, diabetes, chronic obstructive pulmonary disease).

MedPAC will continue its examination of telehealth services by addressing the latter two questions in the following two months, with the intention to review the entirety of its findings in January 2018 (prior to publishing the March 2018 report). Although MedPAC’s upcoming meetings most likely will focus (with respect to telehealth services) on its June 2016 report findings, the Commission hopefully will start to combine its current examination of telehealth services with its June 2016 recommendations to policymakers regarding telehealth (e.g., expanding Medicare PFS coverage of telehealth services).

Updates to OIG FY 2017 Work Plan

The United States Department of Health and Human Services (“HHS”) Office of the Inspector General (“OIG”) recently updated its FY 2017 Work Plan. Traditionally, OIG’s annual Work Plan has given health care providers a preview of OIG’s enforcement priorities. With the OIG now making updates to its Work Plan on a monthly basis, providers stand to gain even more insight into how the focus of OIG is constantly shifting in order to assist in the identification of significant compliance risk areas.

In this most recent set of updates to the FY 2017 Work Plan, OIG announced that it will conduct a review of Medicare claims paid for telehealth services in FY 2017. Specifically, OIG is interested in reviewing claims for telehealth services provided at “distant sites” (i.e., the location of the provider of the telehealth service) that do not correspond with claims from an “originating site” (i.e., the location of the patient). By undertaking this review, presumably OIG seeks to verify that providers of telehealth services are: (1) appropriately rendering these services to Medicare beneficiaries based on current reimbursement rules under Medicare for provision of telehealth services (i.e., the beneficiary is at a valid originating site when receiving the telehealth service, which under current Medicare rules does not include a beneficiary’s home), and (2) not submitting fraudulent claims for telehealth services (i.e., services delivered outside of Medicare’s coverage and reimbursement scope). OIG’s review of these claims may demonstrate the need to update Medicare’s outdated coverage and reimbursement provisions for telehealth services.

Medicare’s Current Coverage of and Reimbursement for Telehealth Services

Compared to ever-expanding coverage of and reimbursement for telehealth services in individual states, as well as the private insurance market, Medicare Part B beneficiaries currently have limited access to telehealth services due to the following restrictions:

  1. Medicare beneficiaries only have access to telehealth services transmitted using an “interactive 2-way telecommunications system (with real-time audio and video).” This definition excludes three frequently used modalities used by providers to deliver telehealth services: (a) store-and-forward technology (with the limited exceptions of CMS demonstration projects ongoing in Alaska and Hawaii), (b) remote patient monitoring (“RPM”) services, and (c) mobile health / wearable technology.
  2. Medicare confines telehealth coverage to “rural health professional shortage area[s].” This geographic restriction is federally defined.
  3. Medicare beneficiaries only may receive telehealth services while physically situated at one of eight “originating site[s],” none of which include the patient’s home—those living in geographically-restricted areas are still obligated to access a medical originating site in order to activate Medicare coverage.
  4. Only eight types of practitioners may deliver the telehealth services to Medicare beneficiaries, and must do so from a qualified “distant site.”
  5. The Centers for Medicare & Medicaid Services (“CMS”) publishes a limited number of HCPCS and CPT codes for telehealth services, and while this universe of codes has gradually increased over time, most of these codes are geared towards reimbursement for behavioral health services delivered through telehealth.

Current Legislative Efforts in Congress

In recent years, federal lawmakers have been working to lessen the constraints on Medicare Part B coverage of and reimbursement for telehealth services.

In August 2016, HHS published a Report to Congress on “E-Health and Telemedicine.” In this report, HHS expressed its support for telehealth expansion and its importance in the health care industry: “[T]elehealth holds promise as a means of increasing access to care and improving health outcomes.” Congress has seemed to take note. In the 2017–2018 legislative session, four key bills have been introduced that, if passed, would improve coverage of and reimbursement for telehealth services under Medicare:

  • The CHRONIC Care Act of 2017 (S. 870) would make four key changes to Medicare: (1) provide coverage and reimbursement for RPM delivery of home kidney dialysis assessments; (2) provide nationwide coverage and reimbursement for “telestroke” consultations (not just those that occur in rural hospitals or other originating sites); (3) eliminate the geographic restriction of an originating site for Accountable Care Organization (“ACO”) beneficiaries, thus allowing patients to receive home telehealth services; and (4) allow Medicare Advantage plans to offer telehealth benefits in annual bid amounts, instead of using rebate dollars to pay for telehealth as a “supplemental service.” The CHRONIC Care Act recently received a favorable, budget neutral Congressional Budget Office (“CBO”) score—alleviating a traditionally difficult roadblock for telehealth legislation.
  • The Medicare Telehealth Parity Act of 2017 (H.R. 2550) would provide an incremental expansion of coverage for telehealth services under Medicare by expanding the number of acceptable geographic locations for telehealth coverage under three “phases.”
  • The CONNECT for Health Act of 2017 (H.R. 2556) includes provisions that would expand coverage and reimbursement of telehealth services for (1) ACO enrollees, (2) individuals receiving kidney dialysis therapy, (3) stroke patients, and (4) RPM services for beneficiaries needing chronic care and would lift restrictions on telehealth for mental health services.
  • The HEART Act (H.R. 2291) aims to increase Medicare coverage of telehealth services, including coverage and payment for store-and-forward services delivered to “any telehealth services that are furnished from a distant site, or to an originating site, that is a critical access hospital . . ., a rural health clinic . . ., or a sole community hospital” and for home-based monitoring of congestive heart failure and chronic obstructive pulmonary disease. These three bills have not yet been scored by the CBO.

While it remains to be seen whether any of these bills (or any others) will become law, the level of legislative activity still is promising—and particularly so in conjunction with HHS’s support for telehealth—that expansion of telehealth coverage and reimbursement under Medicare can make greater strides toward improving access to these services for Medicare beneficiaries.

Added to this, OIG’s recent updates to the FY 2017 Work Plan to include a review of telehealth reimbursement claims under Medicare may further accelerate this process if OIG identifies any pertinent potential risk areas related to provision of telehealth services.

This post was written with assistance from Matthew Sprankle, a 2017 Summer Associate at Epstein Becker Green.

What will the telehealth landscape look like under the Donald J. Trump Administration?

The Trump Administration is likely to drive telehealth advancement in a positive direction. For example, President Trump’s plan to reform the Veteran’s Affairs Department includes improved patient care through the use of telehealth technology. There are also some indications that the newly confirmed Secretary of the Department of Health and Human Services (“HHS”), Tom Price, is “telehealth friendly.” Recently, during the congressional confirmation hearings, Price mentioned a tele-stroke program in Georgia as a model of success, and he said he thought there were many things that can be done to mirror that kind of technological expansion. Price also said he is interested in promoting telehealth because it “holds great promise, particularly for rural areas experiencing physician shortages and for patients with limited mobility.” Moreover, Trump’s pick to be the next Administrator of the Centers for Medicare and Medicaid Services (“CMS”), Seema Verma, said in her recent congressional confirmation hearings that she wants to work with Congress to promote the use of telehealth technology. Specifically, she said, “telehealth can provide innovative means of making healthcare more flexible and patient-centric. Innovation within the telehealth space could help to expand access within rural and underserved areas.” Finally, Maureen Ohlhausen, the recently appointed acting chair of the Federal Trade Commission (“FTC”), has in the past spoken favorably regarding the potential of telehealth and has said that the current professional licensure system needs to be rethought given telehealth technology’s potential.

Despite the current focus in Congress on repealing and replacing the Affordable Care Act, telehealth legislation continues to gain traction and bipartisan support on the Hill. In February, a bipartisan group of 37 Senators sent a letter to Tom Price encouraging HHS to support telehealth and remote patient monitoring. Congress also has embraced telehealth advancement with a consistent stream of proposed legislation seeking to enhance the provision of telehealth services. Most recently, Rep. Joyce Beatty (OH-03) and Rep. Morgan Griffith (VA-09) reintroduced the Furthering Access to Stroke Telemedicine (“FAST”) Act that would expand access to stroke telemedicine (also called “telestroke”) treatment in Medicare. Congress also recently introduced HR 766 which would establish a pilot program to expand telehealth options under the Medicare program for individuals living in public housing. Additionally, Congress is poised to consider at least two bipartisan pieces of legislation focused on telehealth. The first is known as the Creating High-Quality Results and Outcomes Necessary to Improve Chronic (“CHRONIC”) Care Act of 2016, which seeks to modernize Medicare payment policies focused on improving the management and treatment of chronic diseases using telehealth technologies. The second is known as the Creating Opportunities Now for Necessary and Effective Care Technologies (“CONNECT”) for Health Act, which seeks to mandate Medicare reimbursement for telehealth services (beyond the current, limited reimbursement framework). Finally, Senator Orrin Hatch (R-UT), the Chairperson of the Senate Finance Committee, recently released his “innovation agenda for the 115th Congress” which encourages the promotion of the “internet of things,” greater broadband investment, and increased device-to-device communication and cross-border data flows.

Continue Reading Telehealth Outlook Under the Trump Administration

Capitol BuildingAs requested by Congress as part of an appropriations bill signed into law late last year, this month, the Department of Health and Human Services (HHS) released a report highlighting its e-health and telemedicine efforts.  The report makes for interesting reading, and while there are no significant surprises in the report, it offers a clear snapshot of some of the agency’s thinking regarding virtual care.

The first thing I noted in the report is the agency’s view that “telehealth holds promise as a means of increasing access to care and improving health outcomes.”  This is important because it has not always been clear whether the agency views telehealth quite in the same favorable way as other stakeholders increasingly do.  The other thing I noted was the agency’s view that the various alternative payment methods currently being tested may facilitate expansion of telehealth.

Among other things, the report details some of the policy challenges faced by telehealth stakeholders:

  • Significant variability in telehealth coverage from one payer to another.
  • State licensure requirements for clinicians and the administrative burden such requirements impose on clinicians.
  • Credentialing and privileging.
  • Gaps in access to affordable broadband.

HHS indicates that many reforms are currently being tested or implemented to address these challenges. For example, in the area of reimbursement, the agency notes that it is currently testing more expansive telehealth coverage through its Next Generation ACO Demonstration, and highlights MACRA’s incentives for physicians to use telehealth.  The report references the agency’s new rule that permits the use of telehealth modalities to provide Medicaid home health services.

The report also provides an overview of telehealth-related federal activity including:

  • The number of telehealth grants administered by HRSA and SAMHSA.
  • The establishment of the Federal Telemedicine Working Group (comprised of 26 agencies and departments such as USDA and the FCC) to facilitate telehealth education and information sharing.
  • ONC developing an inventory of federal telehealth activities.
  • AHRQ providing an evidence map of the available research regarding telehealth.
  • The continued great telehealth work being done within the VA and reasons why that model may not be scalable.

Overall, the report is an illuminating but relatively unsurprising take on agency thinking.  In particular, two nuggets stood out. First, the agency appears to view chronic disease management as a particularly good fit for telehealth.  In recounting that almost half of all adults have at least one chronic illness and that chronic disease accounts for 75 percent of all health expenditures, the report concludes that telehealth “appears to hold particular promise for chronic disease management.” It goes to reason that any expansion of telehealth under Medicare will probably first focus on chronic disease management. Second, HHS signaled the importance of Medicare Advantage in any telehealth expansion effort, by including a proposal in the President’s budget request for FY 2017 to expand the ability of MA organizations to provide telehealth by eliminating otherwise applicable Part B requirements that certain services be provided only in-person.

stethescopeAs you all know, the subject of telehealth reimbursement continues to vex the community. For example, Medicare lags far behind.  According to the Center for Telehealth and eHealth Law, Medicare reimbursed approximately $14 million total under its telehealth benefit for 2014.  This represents less than .0025 percent of the total Medicare reimbursed for services that year.  Medicaid is something of a mixed bag with the vast majority of states providing some coverage for telehealth, but many lagging in coverage and reimbursement for store-and-forward services and remote patient monitoring. Generally speaking, private payers have been ahead of the curve with the majority of states having parity laws in place requiring insurers to cover telehealth services in many circumstances.

One of the issues about which I am often asked is whether there is any data surrounding private pay reimbursement for telehealth.  A paper published by the Health Care Cost Institute provides some interesting data into telehealth billings.  The good news is that telehealth has extensive room in which to grow.  Among other issues, the paper analyzed one of the largest private claims databases to analyze trends in telehealth billings from 2009-2013.  Here are some key takeaways:

  • There were 6,506 claims for services related to telehealth submitted by primary care providers (compared to the 95.9 million non-telehealth claims).
  • Family practice providers submitted the most claims for telehealth followed by internal medicine.
  • Non-telehealth service reimbursements increased every year since 2009, from $57 to $61.
  • Average reimbursements for telehealth claims, however, declined substantially after 2011, decreasing from $68 to $38 in 2013—40% lower than that for non-telehealth claims in 2013.
  • California and New York had relatively small numbers of claims when analyzed against their large populations.
  • Among seven unique CPT codes for an office/outpatient visit for evaluation or management of a patient, average telehealth reimbursements were nearly the same or lower than the non-telehealth service for six of these procedures.
  • The most commonly diagnosed problem seen by primary care providers using telehealth (in descending order) were diabetes mellitus (almost 14% of all telehealth claims); depressive disorders; acute sinusitis; biopsy of the lymphatic structure; obstructive sleep apnea; bipolar disorder; and acute upper respiratory infections.

The paper notes that despite the increased use of telehealth, claims for telehealth services to private insurers are rare which the paper acknowledges could be due to the “considerable time lag in the translation of [state telehealth policies] into provider behaviors.  There is also some discussion suggesting that low telehealth billings may be due to confusion regarding the appropriate billing codes to use.

My sense is that a lot has changed since 2013, and that should a review be done today, telehealth billings would have significantly increased.  Nevertheless, the paper clearly confirms telehealth has plenty of room in which to grow.

medicare1As many of you know, reimbursement for telehealth services is a mixed bag.  On the one hand, private payers generally seem ahead of the curve.  Many leading private insurers reimburse for telehealth.  Generally these coverage policies provide reimbursement for telehealth services when they involve the use of real-time interactive audio, video, or other electronic media for diagnosis and consultation.  Just as significantly, more than half the states and the District of Columbia have passed telehealth parity statutes which require health insurers to provide coverage for services provided via telehealth if those services would be covered if provided in-person.  The picture for private insurer telehealth coverage is generally good and getting better.

On the other end of the scale is Medicare.  I think it is fair to say that no payer lags further behind in reimbursing for telehealth than Medicare.  The numbers tell the story.  The Center for Telehealth and eHealth Law reports that in calendar year 2014, Medicare reimbursed approximately $14 million under its Part B telehealth benefit—or about .0023 percent of total Medicare spending in 2014—a mere pittance.  The real reason for this is that the Medicare telehealth benefit was primarily intended for rural patients.  In addition:

  • The definition of “telehealth” is limited to real-time audio visual communication between provider and patient (in other words, there is no coverage for so-called asynchronous or “store and forward” technology).
  • Fewer than 100 codes are reimbursable under the telehealth benefit.
  • Other restrictions exist related to type of facility where a patient may present, and what kind of provider may deliver services (e.g., physicians, nurse practitioners).

Medicare Advantage offers more opportunities for telehealth coverage, but overall the current Medicare telehealth reimbursement picture is relatively bleak.

medicaidMedicaid Reimbursement for Telehealth

Medicaid telehealth reimbursement exists somewhere in the space between private payers and Medicare.  As you know, Medicaid provides health coverage to about 70 million low-income adults, children, pregnant women, and others.  The program is administered by states who are required to cover certain mandatory services (such as hospital and physician services, home health), but is funded jointly by the states and the federal government.  States do have flexibility to decide what optional services (such as telehealth) to cover beyond the mandatory services.  This has resulted in a patchwork of different coverage policies that vary by state.

Fortunately, there a number of stakeholders that closely track Medicaid telehealth coverage policies by state.  One of these is the Center for Connected Health Policy, which issues a quarterly report reviewing various telehealth legal and regulatory issues for all states.  In its last report (July 2015), the Center found the following regarding Medicaid telehealth coverage:

  • 47 states and the District of Columbia provide some coverage for telehealth (Iowa, Massachusetts, Rhode Island do not according to the report).
  • In many Medicaid programs, the definition of “telemedicine” or “telehealth’ for purposes of reimbursement is limited to services that take place in real time—thereby excluding asynchronous or remote patient monitoring from coverage.
  • Live video is the most predominantly reimbursed form of telehealth with almost all of the states that cover telehealth offering some type of live video reimbursement in their Medicaid programs.
  • Services provided via telephone, e-mail, or fax are seldom covered unless they are used along with other forms of care delivery.
  • Only 9 states (including Illinois, New Mexico, and Virginia) currently reimburse for store-and-forward services. Even in states that do cover store-and-forward, covered services may be iStock_000043291394_Smalllimited—such as in California, where only store-and-forward services related to teledermatology, teleophthalmology and teledentistry are reimbursable under Medicaid.
  • 16 states (including Colorado, Maine, and South Carolina) provide Medicaid coverage for remote patient monitoring although many restrictions exist. For example, in some states, coverage for remote patient monitoring is limited to home health agencies. There are also restrictions regarding the conditions which may be monitored and the type of monitoring devices that may be used.
  • 29 states reimburse a transmission and/or facility fee.
  • 29 states (including Connecticut, Kansas, and Maryland) require some form of informed consent prior to the use of telehealth.

All in all, the picture for Medicaid reimbursement for telehealth is far better than it has been in the past. Each state Medicaid program is different, so stakeholders need to carefully analyze each state’s telehealth coverage policies. My sense is that given the serious fiscal and clinical (e.g., provider shortages, network inadequacy) issues faced by many Medicaid programs, telehealth will increasingly be viewed as a means to seriously address these challenges. We are starting to see this play out in the Medicaid managed care space.

Medicaid Managed Care Coverage

By way of quick background, a majority of states contract with managed care organizations to provide services to certain Medicaid beneficiaries. Generally, these managed care plans receive a monthly premium from the states for each enrollee, and have greater flexibility to cover more services and allows the states to better target and customize services. As the American Telemedicine Association noted in its report on telehealth and Medicaid managed care published last year, “states have increasingly used [Medicaid managed care] to create payment and delivery models involving capitated payments to provide better access to care and follow-up for patients, and also to control costs.” Because of this flexibility, a number of leading Medicaid managed care plans are either already covering telehealth or are developing telehealth initiatives and pilots—especially related to telemental health and teledermatology. In my view, the future looks bright when it comes to Medicaid managed care and telehealth.

CMSProviders, take note: the Chronic Care Management (CCM) CPT Code 99490 is now payable by the Centers for Medicare & Medicaid Services (CMS). Effective January 1, 2015, the Medicare program began making payments under the Physician Fee Schedule (PFS) for certain non-face-to-face management and care coordination services provided to beneficiaries covered under the traditional Medicare fee-for-service program. CCM services include, but are not limited to, development and maintenance of a plan of care, communication with other treating health care professionals, and medication management. In order to be eligible for CCM services, beneficiaries must have two or more chronic conditions, expected to last at least 12 months or until the death of the beneficiary. Claims for CCM services are payable on a monthly basis, must include at least 20 minutes of qualifying services, and are subject to beneficiary coinsurance and deductibles. Information on the availability of CCM services must be conveyed to the beneficiary through a face-to-face visit and the beneficiary must consent to receiving such services. Only one Medicare provider can provide and be paid for CCM services provided to an individual beneficiary during each calendar month.

CMS hosted an MLN Connects National Provider Call on February 18, 2015 to review the requirements for physicians and other practitioners to properly bill the new CCM CPT code. During the call, titled “Chronic Care Management Services: CY 2015 Medicare Physician Fee Schedule,” CMS provided an overview of the requirements for physicians and other practitioners to bill using CPT code 99490. CMS discussed the eligible beneficiary population for CCM services, the scope of CCM services, the Medicare providers who are eligible to provide CCM services (including on an “incident to” basis), and how CCM services might overlap with current demonstration and other initiatives by CMS. CMS noted that portions of the CCM requirements were finalized in two different PFS final rules, some in the CY 2014 final rule and the remainder in the CY 2015 rule. This overview was followed by a robust question and answer session, which provided some of the most interesting takeaways:

  • CMS has not established a specific list of chronic conditions that would be covered by the new CCM CPT code. CMS suggested referencing the Chronic Conditions Data Warehouse[1] to identify possible chronic conditions, but cautioned that use of the CCM CPT code would not be limited to the conditions identified therein. According to CMS, until such a time when more prescriptive restrictions could be established, the only limitations with regard to eligible chronic conditions are those outlined in the CPT code description itself.
  • Beneficiary consent to receive CCM services remains effective until withdrawn, even if the provider is not able to or otherwise does not bill for the CCM services for a period of time.Cash 5
  • CMS is deferring to the Medicare Administrative Contractors (MACs) many of the specific billing questions about which participants inquired during the call, including how to capture place and date of service details, how to document time spent performing CCM services, and whether time spent by Certified Medical Assistants can count toward the 20 minutes required per calendar month to bill for CCM services.

CMS recently published a new Fact Sheet regarding CCM services (ICN 909188). The Fact Sheet will be a helpful resource for providers seeking to utilize the CCM CPT code and other interested stakeholders, as it covers much of the detail discussed during the CMS call and includes a helpful table that illustrates the alignment between the CCM scope of service elements and billing requirements with the certified Electronic Health Record (EHR) or other electronic technology requirements.

So have the MACs weighed in yet regarding the use of new CPT code 99490? Stay tuned for our next post, in which we will “consult the MAC” to see what helpful guidance, if any, they have provided to date.

[1] Chronic Conditions Data Warehouse, https://www.ccwdata.org/web/guest/home.