Federal and State Telehealth Guidance

April 1, 2020

FEDERAL

• Centers for Medicare & and Medicaid Services
   
  • Medicare. Medicare telehealth coverage expanded to all Medicare beneficiaries allowing the Centers for Medicare & and Medicaid Services (CMS) to use section 1135 waiver authority and the Coronavirus Preparedness and Response Supplemental Appropriations Act, to temporarily eschew limitations pertaining to Medicare telehealth services are waived during this emergency situation. Link: https://www.congress.gov/116/bills/hr6074/BILLS-116hr6074enr.pdf; https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet.
  • Waiver for out-of-state providers. CMS has temporarily waived a number of requirements including the licensing mandate that out-of-state providers licensed in the state where they are providing services. Link: https://www.cms.gov/files/document/covid19-emergency-declaration-health-care-providers-fact-sheet.pdf.
  • Medicaid State Plan Fee-for-Service Payments. CMS released guidance to assist states in understanding policy options for paying Medicaid providers that use telehealth technology to deliver services. Link: https://www.medicaid.gov/medicaid/benefits/downloads/medicaid-telehealth-services.pdf; https://www.medicaid.gov/state-resource-center/downloads/covid-19-faqs.pdf.
• Department of Health and Human Services
   
  • OCR Lifts HIPAA Penalties for Telehealth Use. HHS Office for Civil Rights (OCR) will exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype. Link: https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html.
  • OCR Bulletin on HIPAA Privacy and Novel Coronavirus. OCR issued a Bulletin reminding covered entities (i.e., Healthcare Providers; Health Plans; and Healthcare Clearinghouses) and their business associates how patient information may be shared under HIPAA during the COVID-19 health emergency. https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf.
• Office of Inspector General
   
  • On March 17, the OIG announced that during the time period subject to the COVID-19 Declaration, that physicians and practitioners will not be subject to administrative sanctions for reducing or waiving any cost-sharing obligations that Federal health care program beneficiaries would owe for telehealth services.. Link: https://oig.hhs.gov/fraud/docs/alertsandbulletins/2020/policy-telehealth-2020.pdf.
• Drug Enforcement Administrations (DEA)
   
  • Prescriptions for schedule II-V controlled substances allowed.  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. https://www.deadiversion.usdoj.gov/coronavirus.html#TELE.

NEW YORK STATE

• New York State Medicaid’s Comprehensive Guidance Regarding Use of Telehealth including Telephonic Services During the COVID-19 State of Emergency. This guidance was issued in response to the broad expansion of telehealth services to all Medicaid providers in all situations . https://omh.ny.gov/omhweb/guidance/medicaid-update-covid19-telephonic-telehealth.pdf.
• Office of Mental Health. Commissioner of the Department of Health provides a regulatory waiver to ensure access to mental health services so long as providers submit self-assentation confirming compliance to New York standards. https://omh.ny.gov/omhweb/guidance/use-of-telemental-health-disaster-emergnecy.pdf; Telehealth Update for People Served Through OMH-Funded Programs. https://omh.ny.gov/omhweb/guidance/supplemental-guidance-telehealth-omh-funded-programs.pdf.   Self- Assentation Form. https://omh.ny.gov/omhweb/guidance/self-attestation-telemental-health-disaster-emergency.pdf .
• Office of Addiction Services and Supports (OASAS). Telepractice waiver updated to allow telephonic delivery as an acceptable means of service delivery for Telepractice by OASAS programs. https://oasas.ny.gov/system/files/documents/2020/03/letter-of-counsel-covid-19-3.9.2020-002-signed.pdf; https://oasas.ny.gov/system/files/documents/2020/03/telepractice_waiver-update.pdf; Self- Assentation Form. https://oasas.ny.gov/system/files/documents/2020/03/attestation-covid-19.pdf.