Telehealth During COVID-19: What Federally Qualified Health Care Centers Should be Doing to Maximize Their Services

May 28, 2020 | Health Care, Covid-19

During the COVID-19 Public Health Emergency, the government is encouraging health care providers to adopt and use telehealth to see patients when possible. Telehealth is an effective way to maintain patient care while minimizing COVID-19 exposure and spread. Federally qualified health centers (“health centers”) can and should implement telehealth for all in-scope services during the public health crisis. 

How can health centers utilize telehealth services?

Pursuant to HRSA PAL 2020-01, health centers can bill for telehealth services. According to HRSA, “within the context of the Health Center Program scope of the project, ‘telehealth’ is not a service or a service delivery method requiring specific HRSA approval; rather, telehealth is a mechanism or means for delivering a health service(s) to health center patients using telecommunications technology or equipment. As such, health centers are not required to seek prior approval from HRSA for a change in scope to use telehealth, nor separately record the use of telehealth as the means to deliver a service that is already in scope. So long as services provided by the health center are in scope, no approval is needed to deliver the same services via telehealth. Additionally, patients that present at a physical location that is not an in-scope service site, such as their home, and a provider that is delivering service at a location that is not an in-scope service site, can still bill for telehealth services. Traditionally, providers were required to deliver services from an in-scope site. This has been lifted under current HRSA regulation. 

In the scenario where the patient and provider are both operating the telehealth visit from their home, HRSA requires the health center to ensure a clear delineation in health center policy of rules and responsibility for health center staff, individuals received the service via telehealth are established health center patients, patients have reasonable access to the health center’s full scope of services, and that health centers directly bills/pay for the service(s) provided via telehealth, including providing applicable sliding fee discounts in alignment with Health Center Program requirements. 

How have Medicaid and Medicare expanded to help combat COVID-19?

Changes to policies and regulations for Medicaid are largely being adopted at the state level. Idaho Medicaid issued guidance on changes, including allowing providers who do not have access to the technology required for video-enabled virtual sessions to provide telephonic sessions in a member’s home and allowing the combination of patient and provider locations when telehealth services are being provided from each parties’ home.

In light of the COVID-19 pandemic, Medicare expanded telehealth coverage enabling patients to receive a larger range of healthcare services from their providers via telehealth. This expansion includes: 

    • Allowing beneficiaries to receive telehealth services within their homes;
    • CMS declining to enforce the established relationship requirement (HHS will not conduct audits to enforce that a patient has a prior established relationship with a particular practitioner); 
    • Authorizing the use of telephones that have audio and video capabilities as acceptable equipment for telehealth; and
    • Allowing for certain services to be delivered via audio-only.

What applications can be used to deliver care?

The Office for Civil Rights (OCR) at the U.S Department of Health and Human Services (HHS) announced that it will immediately exercise its enforcement discretion and will waive potential penalties for HIPAA violations against health care providers that serve patients through everyday communications technologies during the COVID-19 nationwide public health emergency. OCR will not impose penalties against covered health care providers for the lack of a business associate agreements (BAAs) with video communication vendors or any other noncompliance with the HIPAA Rules that relate to the good faith provision of telehealth services during the COVID-19 nationwide Public Health Emergency. Covered health care providers may use popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, to provide telehealth without the risk that OCR might seek to impose a penalty for noncompliance with the HIPAA Rules related to the good faith provision of telehealth during the COVID-19 nationwide public health emergency. 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. Facebook Live, Twitch, TikTok, and similar video communication applications are public-facing, and should not be used in the provision of telehealth by covered health care providers.

Do telehealth services have to be delivered via video?

Medicaid: It depends. While Medicaid usually requires the use of interactive telecommunications equipment that includes, at a minimum, audio and video equipment, Medicaid has loosened the video requirement in light of the COVID-19 outbreak. Currently, services that can be provided effectively telephonically without real-time video will be covered under Medicaid. Services that cannot be effectively completed without visual interaction require a video component. Currently, there is no guidance regarding what services can and cannot be effectively completed without visual interaction.  Accordingly, providers should use their best judgment.

Optum: No. If a provider cannot deliver services via telemental health (TMH), or a member cannot receive services via TMH, providers may temporarily offer services telephonically until further notice. This allowance applies to all provider types (e.g.independently licensed and paraprofessionals).

Medicare: It depends. Medicare generally requires that general telehealth services must be provided via video and audio. The video component requirement has been waived for specific services in light of the COVID-19 outbreak. This waiver provides for the use of audio-only equipment to provide services described by the codes for audio-only telephone evaluation and management services, behavioral health counseling, and educational services. Additionally, virtual check-ins, a separate service available under Medicare, can be provided via telephone.

It is important to note that these changes are not permanent, and only apply during the COVID-19 pandemic. Before providing telehealth services, confirm these expansions are still in place. If you have questions about implementing telehealth services at your health center please contact Smith + Malek to learn more about how we can help. 

This blog post is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. This blog does not provide legal advice. This blog does not create an attorney-client relationship between you and Smith + Malek, PLLC. If you want to create an attorney-client relationship and have specific questions regarding the application of the law to your own circumstances, you should contact our office.