Loyola University Chicago School of Law, JD 2023
Recent regulatory waivers and rule changes by the Centers for Medicare and Medicaid Services (“CMS”) have resulted in a notable increase in patients seen remotely, according to two recent studies. The studies suggest that CMS regulatory waivers and rule changes, which included expanded access to COVID-19 testing and telehealth services in response to challenges faced by health care providers and patients during the COVID-19 pandemic, have increased remote delivery of mental health care and highly specialized clinical practices like plastic surgery.
The regulatory waivers, which are retroactive to March 1, not only expanded telehealth services though. They also increased COVID-19 testing for Medicare and Medicaid beneficiaries and added new reporting requirements for long-term care facilities. CMS, a division of the U.S. Department of Health and Human Services (“HHS”), said the rule changes and regulatory waivers were intended to expand access to healthcare and provide flexibility to the healthcare system. They followed previous rule changes and regulatory waivers announced on March 30 and April 10.
Expanded telehealth services
CMS now allows greater flexibility in payment and service delivery models, the most notable of which is the expansion of telehealth services. CMS is currently waiving limitations on the types of clinical practitioners able to provide Medicare telehealth services. Medical providers may offer a wider range of services to beneficiaries in their homes under the new rules.
Before the change, only certain healthcare professionals could provide telehealth services. Following the changes, the types of providers able to utilize telehealth as expanded to include physical therapists, occupational therapists, and speech language pathologists. The agency has also increased payments for telephonic appointments to match those made for similar office or outpatient visits. Under the Coronavirus Aid, Relief, and Economic Security Act (“CARES” Act), CMS now pays for Medicare telehealth services performed by rural health clinics, which were not previously covered. Two newly published studies find a significant impact from the CMS regulatory waivers.
Researchers at Virginia Commonwealth University found that psychologists’ telepsychology use increased 12-fold during the pandemic, rising from 7.07% of their clinical work to 85.53%. Two of the reasons the study cited for increasing telepsychology were that CMS’s temporarily relaxed reimbursement restrictions, as well as raising the reimbursement rate for telemedicine visits to the same rate as in-person visits. For example, before the regulatory waivers, Medicare set out specific qualifications for reimbursement for telehealth sessions, like being in a certain designated rural area. But the new waivers from HHS now allowed telehealth clinicians to obtain reimbursement for visits with patients in states where they were not licensed at the time. These sessions are now allowed on Skype, FaceTime, and other communications apps.
Another study by researchers at the University of Texas Southwestern Medical Center showed a significant increase in telehealth visits in the UTSW’s clinics beginning in mid-March. The study, published online on July 22, noted the effect of Medicare’s parity payments for telehealth visits provided to patients in their homes. “The federal government has taken the lead in easing restrictions for telehealth during this public health emergency,” the study’s authors wrote. “Given the actions by the federal government and significant investment that organizations have made in providing telehealth services during this time, we are hopeful that telehealth will continue to be reimbursed at all levels that are at parity with in-person visits.”
Expanded COVID-19 testing for Medicare and Medicaid beneficiaries
The new regulatory waivers and rule changes have expanded COVID-19 testing for Medicare and Medicaid beneficiaries, some of whom no longer need a physician’s order to get COVID-19 tests. During the current public-health emergency, COVID-19 tests may now be covered when ordered by any state-authorized healthcare professional.
The new rules permitted some pharmacists to perform certain COVID-19 tests if otherwise allowed under state law. This change allowed Medicare and Medicaid beneficiaries to get tested at some pharmacy parking lot test sites. The federal agency also began covering certain serology, or antibody tests. CMS said the rule changes were meant to encourage broader testing by expanding COVID-19 testing capacity.
New requirements to report nursing home infections and deaths
Finally, CMS also revised 42 CFR § 483.80 to establish explicit COVID-19 reporting requirements for long-term care facilities, which now report certain information related to COVID-19 cases among facility residents and staff. The first batch data of nursing homes, which was released by CMS on June 1, showed 25,923 resident deaths, along with 449 staff deaths, tied to COVID-19. After a temporary waiver when the COVID-19 outbreak began, on June 25, the CMS reinstated mandatory reporting of certain long-term care facility staffing data under 42 CFR 483.70(q).
HHS also has a COVID-19 Healthcare Workforce Toolkit to assist healthcare providers. Among other things, the toolkit includes resources related to federal regulatory and funding flexibilities in response to the pandemic.
Taken together, these regulatory waivers and rule changes by CMS have expanded access to health care services during the COVID-19 pandemic, particularly because, in many cases, patients may now see their health care providers remotely.