Crisis Responses in Health Care Regulation and Policy during COVID-19 Pandemic

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This article aims to summarize several developments in health care regulation and policy as part of the federal and state response to the COVID-19 outbreak in the United States.

As part of the $8.3 billion COVID-19 supplemental appropriations bill passed and signed into law in early March, Medicare restrictions on the use of telemedicine were loosened. Formerly, telemedicine services could only be used for patients in a rural area and when the patient was already in a physician’s office or another health care facility. Its primary use was giving patients access to specialists that were otherwise unavailable in rural areas. Under the new legislation, patients with an existing relationship with a practitioner could receive services from that practitioner (or others in the practitioner’s office or group practice) via a phone with both video and audio synchronous communication (essentially any smartphone). These changes are effective only in emergency areas and during an emergency period, which would apply to the whole of the United States since the President declared a state of emergency on March 13.

CMS followed up on the statute’s changes by waiving the requirement under Medicare and Medicaid that an out-of-state physician be in licensed in the state where they provide services if they are already licensed in another state.

These federal changes only apply to the circumstances under which the Medicare program will pay for certain services; it does not waive or rescind any state-level restrictions on the use of telemedicine or require any commercial third-party payors to change their criteria for covering telehealth services.  Governors in California, New York, Colorado and Massachusetts have recently announced mandates for commercial insurers to cover telehealth services with no cost sharing, in order to promote its use and keep sick patients out of waiting rooms.

In addition to these changes, CMS announced additional 1135 waivers on March 13:

• No prior 3-day hospitalization required for a covered skilled nursing facility (SNF) stay;
• Bed and length of stay limits lifted for critical access hospitals (CAH);
• Loosening restrictions on documentation for replacement of DMEPOS;
• Hotline established to quickly enroll providers with temporary Medicare billing privileges;
• Eliminate screening requirements that slow down Medicare enrollment; and
• Extension of timeframes for appeal of Medicare denials.

CMS further announced that states could seek additional state-specific 1135 waivers under a state’s Medicaid and CHIP programs.  A complete list of the 1135 waivers granted and permitted by CMS can be found at https://www.cms.gov/files/document/covid19-emergency-declaration-health-care-providers-fact-sheet.pdf.

As stated in our previous guidance, providers should evaluate how they can use telemedicine to continue to serve their patients either in the event of a shortage of practitioners (due to illness or quarantine) or based on the need to limit patient contact in the exam room or the waiting area.