Impact of COVID-19 on Telehealth Advances

With the emergence of the COVID-19 pandemic in the United States in early 2020, both the federal government and the State of Kansas responded by issuing orders to waive regulations pertaining to telehealth to ease the access to medical care for individuals, in light of social distancing measures to prevent the transmission of COVID-19. This article provides an overview of the federal government changes to telehealth regulations, the Kansas telehealth flexibilities initiated as they relate to the KanCare program and executive orders, and other flexibilities related to prescriptions and Health Insurance Portability and Accountability Act (HIPAA) patient communications.

According to the National Conference of State Legislatures, telehealth is defined differently by nearly all states and even by different entities within the federal government. Generally, “telemedicine” refers to clinical services, and “telehealth” encompasses a broader scope and can refer to remote non-clinical services, including provider training, administrative meetings, and continuing medical education, in addition to clinical services. Telehealth and telemedicine can often be used interchangeably. The Kansas Legislative Research Department (KLRD) provides several memorandums concerning telehealth, including an overview on telehealth and telemedicine definitions, coverage of telehealth services in Medicaid and Medicare, and telemedicine laws and recent legislation in nearby states, which may be found at http://www.kslegresearch.org/KLRD-web/Health&SocialServices.html.

Federal Actions

Federal Legislation

On March 6, 2020, Congress passed the Coronavirus Preparedness and Response (CPR) Supplemental Appropriations Act 2020 [PL 116-123]. The CPR Act facilitated changes for telehealth services, allowing the Secretary of Health and Human Services (Secretary) the authority to temporarily waive or modify Medicare requirements related to telehealth services during the emergency period.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted on March 27, 2020, included funds for the provision of telehealth services and increased telehealth capacity through the purchase of equipment and other methods. More specifically, telehealth provisions in the CARES Act include:

• Appropriated $29 million for each of federal fiscal years 2021 through 2025 for the Telehealth Network Grant Program that awards eligible entities for projects that demonstrate telehealth technologies can be used in rural areas and medically-underserved areas. The program was extended from four to five years;
• Under Section 3701, for plans beginning on or before December 31, 2020, the Act allowed high-deductible health plans with a health savings account (HSA) to cover telehealth services prior to a patient reaching the deductible;
• Granted the Secretary the authority to waive provisions with regard to payment for telehealth services and, for telehealth services provided during the COVID-19 emergency period, removed the requirement that providers of telehealth services have treated the Medicare beneficiary receiving telehealth services in the last three years;
• Allowed federally qualified health centers (FQHCs) and rural health clinics (RHCs) to provide telehealth services to Medicare beneficiaries during the COVID-19 emergency period;
• Allowed Medicare beneficiaries receiving hospice care to have a face-to-face encounter via telehealth with a hospice physician or nurse practitioner to re-certify continued eligibility for hospice care during the COVID-19 emergency period;
• Required the Secretary to issue clarifying guidance regarding the use of telecommunications systems for home health services, including remote patient monitoring, during the COVID-19 emergency period;
• Allocated $200 million to the Federal Communications Commission for salaries and expenses to respond to the coronavirus pandemic (COVID-19), domestically or internationally, including to support efforts of health care providers to address coronavirus by providing telecommunications services, information services, and devices necessary to enable the provision of telehealth services during an emergency period; and
• Allocated $180 million to the Health Resources and Services Administration to carry out telehealth and rural health activities, of which no less than $15 million was required to be allocated to tribes, tribal organizations, urban Indian health organizations, or health service providers to tribes.

Federal Regulations

In certain emergency circumstances the Secretary, using Section 1135 of the Social Security Act, can temporarily modify or waive certain Medicare, Medicaid, and Children’s Heath Insurance Plan regulations using blanket waivers. The Centers for Medicare and Medicaid services (CMS) has continued to publish guidance on these changes. The full list of changes can be found at https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-waivers.pdf.

The following are some of the major changes to Medicare telehealth policy made by the Secretary due to the COVID-19 public health emergency:

• Allows certain practitioners to bill for telehealth services that were not previously allowed. This includes physical therapists, occupational therapists, speech language pathologists, and others;
• Allows the use of audio-only equipment to furnish services described by the codes for audio-only telephone evaluation and management services and behavioral health counseling and educational services;
• Waives certain regulations for critical access hospitals regarding telemedicine and making it easier for telemedicine services to be furnished to the hospital’s patients through an agreement with an off-site hospital;
• Allows physicians and non-physician practitioners to perform in-person visits for nursing home residents in skilled nursing facilities and visits to be conducted, as appropriate, via telehealth options;
• Allows physicians and other practitioners to render telehealth services from their homes without reporting their home address on their Medicare enrollment while continuing to bill from their currently enrolled location; and
• Removes limitations on where Medicare patients are eligible for telehealth during the emergency, in particular, allowing patients outside of rural areas and patients in their homes to be eligible.

Prescription Flexibilities

The U.S. Drug Enforcement Administration (DEA) Diversion Control Division issued guidance on many areas concerning controlled substances and electronic prescribing during the COVID-19 pandemic. The Controlled Substances Act contains exceptions to the general rule that a prescription for a controlled substance issued by means of the Internet (including telemedicine) must generally be predicated on an in-person medical evaluation. One of these exceptions is when the Secretary has declared a public health emergency.

As of March 16, 2020, and continuing as long as the Secretary’s designation of a public health emergency remains in effect, DEA-registered practitioners in all areas of the United States may issue prescriptions for all schedule II-V controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all of the following conditions are met:

• The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice;
• The telemedicine communication is conducted during an audio-visual, real-time, two-way interactive communication system; and
• The practitioner is acting in accordance with applicable federal and state laws.

The DEA also announced that practitioners may prescribe buprenorphine to new and existing patients with opioid use disorder via telephone by otherwise authorized practitioners without requiring such practitioners to first conduct an examination of the patient in-person or via telemedicine. This exception lasts until the Secretary declares the public health emergency ended, unless the DEA specifies an earlier date.

HIPAA Flexibilities

The U.S. Department of Health and Human Services Office for Civil Rights (OCR) issued a Notification of Enforcement Discretion (Notification) regarding COVID-19 and telehealth communications. The Notification states HIPAA-covered health care providers may, in good faith, provide telehealth services to patients using remote communication technologies, even if the application does not fully comply with HIPAA rules. The OCR would exercise its discretion and would not impose penalties for noncompliance with the regulatory requirements under the HIPAA rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 public health emergency.

The Notification only applies to HIPAA-covered health care providers. A health care provider is a covered entity under HIPAA if it transmits any health information in electronic form in connection with a transaction for which the Secretary has adopted a standard. The Notification applies to all HIPAA-covered health care providers, with no limitations on patients they serve with telehealth, including those patients that receive Medicare or Medicaid benefits.

Under the Notification, covered health care providers may use popular applications to deliver telehealth as long as they are “non-public -facing.” Examples of public-facing applications are Facebook Live and Twitch. Examples of non-public-facing video chat applications include:

• Apple FaceTime;
• Facebook Messenger video chat;
• Google Hangouts video;
• Zoom; and
• Skype.

Kansas Telehealth Actions

KanCare

On March 20, 2020, the State Medicaid Director sent a communication to CMS detailing the Medicaid requirements that pose challenges for health care delivery in Kansas during the pandemic. On March 24, 2020, CMS sent a response of the different approvals related to the requests, pursuant to Section 1135 of the Social Security Act.
In regard to reimbursement rates for distance sites, Kansas Medical Assistance Program (KMAP) General Bulletin 20045 states services delivered through telemedicine will be equivalent to identical services provided in person. The Medicaid fee-for-service fee schedule that is posted on the KMAP website will serve as the source for reimbursement by code. The bulletin states there will be no change in reimbursement levels for existing originating sites. In the instance that “home” is the originating site, then there will be no originating site fee paid for that claim.

The following are some of the flexibilities that Kansas may now utilize during the COVID-19 pandemic for telehealth services:

• No geographic limitations for telehealth services (e.g. services are not limited to rural or non-metropolitan service locations);
• Patient’s home is now an eligible “originating site” or “patient site” for telehealth services;
• Other non-healthcare facilities (e.g. schools, work sites, libraries) are eligible as originating/patient sites;
• Originating and patient sites, other than the patient’s home, can bill for a facility fee (this also applies to federally qualified health centers and rural health clinics);
• Providers are allowed to be reimbursed for certain codes when the originating telehealth site place of service is “home” (Place of Service code 12);
• A prior existing relationship with a patient is not required to provide telehealth services;
• Any eligible member service can be provided via telehealth when medically- necessary and appropriate;
• Patient co-pays and out-of-pocket costs still apply unless waived by the payer or plan (not applicable for COVID-19 services);
• Prior authorization is not required for telehealth services, unless in-person services also require prior authorization;
• For some services, providers may utilize telephone/audio-only visits;
• Verbal consent, and not requiring written consent of the patient for some services, is allowed; and
• The use of personal devices such as smartphones and tablets may be used to deliver telehealth services (Kansas allows for some, but they must be HIPAA compliant).

KMAP provides a detailed list of the changes made due to the COVID-19 pandemic. A full list of the bulletins and provider information can be found at https://www.kmap-state-ks.us/Documents/Content/Provider/COVID%2019%20.pdf.

While the majority of telehealth changes in Kansas are in place until the public health emergency ends or until further notice by the State Medicaid Director, some flexibilities have expired. For example, certain dental codes that were approved for payment when provided by way of telecommunication technology by KMAP Dental Bulletin 20052 expired June 30, 2020.

State Employee Health Plan

The Kansas State Employee Health Plan (SEHP) issued a memorandum related to benefits and COVID-19. Effective through December 31, 2020, SEHP partners Aetna Better Health of Kansas and Blue Cross Blue Shield of Kansas will provide telehealth services with a virtual doctor’s office. There is 24/7 access to this service and the member cost share is waived for any telehealth service.

Executive Orders

On March 20, 2020, the Governor signed Executive Order No. 20-08, which temporarily expanded telemedicine access and addressed certain licensing requirements to combat the effects of COVID-19. The order encourages physicians to utilize telemedicine and prevents the Kansas State Board of Healing Arts (Board) from enforcing any statute, rule, or regulation that would require physicians to conduct an in-person examination of a patient prior to prescribing medication, including controlled substances. The order allows for out-of-state physicians, who hold unrestricted licenses to practice medicine in the state in which they practice medicine and are not the subject of an investigation or disciplinary proceeding, to treat Kansans through telemedicine upon notice to the Board.

Executive Order No. 20-35 extended the provisions of Executive Order No. 20-08 until June 30, 2020.

The Office of Recovery

The Governor established the Office of Recovery within the Office of the Governor;it is composed of governor-appointed members representing the business community, economic development community, and the Legislature. The Strengthening People and Revitalizing Kansas (SPARK) Taskforce, a 5-member executive committee that makes recommendations based on the work of a 15-member steering committee, was tasked with making recommendations to the Governor on how $1.03 billion in state Coronavirus Relief Fund moneys, received through the CARES Act and appropriated in 2020 Special Session HB 2016, should be allocated. An Investment Dashboard on the Office of Recovery’s website outlines the various programs and funding levels created to expend the money before December 30, 2020.

According to the Investment Dashboard, $10 million of the funds was allocated through the Department of Commerce to address broadband connectivity issues including barriers for telehealth and to create a Provider Partnership Support Program that works with internet service providers to expedient deployment of assistance for vulnerable populations and families (https://covid.ks.gov/covid-data/).

For more information on funding enhancements at the federal and state level for broadband expansion, see article N-1 Broadband Expansion.