Medicare and Medicaid Waivers

***Information and guidance in client updates was up to date at time of publication. During the pandemic, information and guidance has been changing rapidly. If you have any questions about the information contained in a client update, please contact the author(s) or your Miller Johnson attorney.***

In light of the Coronavirus pandemic, Medicare, Medicaid and the state and federal government have taken steps to issue waivers and implement orders to help health care providers address the unique challenges posed by the Coronavirus.

Use of Telehealth

On March 12^th, Michigan Medicaid issues a proposed policy, effective March 1, 2019, loosening restrictions on telehealth services.  Most importantly, Medicaid will now pay for services where the patient is at home or at other established “considered appropriate by the provider” as long “privacy and security requirements…are established and maintained.”

On March 10^th, Medicare authorized Medicare Advantage plans and Part D plans to expand access to certain telehealth services.

On March 17^th, President Trump waived certain Medicare restrictions on telehealth services.  Medicare will now pay for telehealth services outside of rural areas. Some restrictions remain.  For example, telehealth services can only be provided to patients seen by the provider in the last three years.  We anticipate CMS will issue additional guidance on telehealth services soon.

Both Medicare and Medicaid will permit telehealth services to be provided by telephone in addition to secure video.

Other Waivers and Orders

On March 15^th, Michigan Governor Gretchen Whitmer issued an executive order prohibiting most visitors in health care facilities, resident care facilities, congregate care facilities and juvenile justice facilities. The order also requires these facilities to perform an assessment on all individuals entering the facility, including employees and staff.

On March 13^th, Medicare issued a number of blanket waivers including, but not limited to:

• Waiving the 3-day prior hospitalization requirement for coverage of a skilled nursing facility (SNF) stay. Certain beneficiaries who have recently exhausted their SNF benefits may be given new coverage.
• Acute care hospitals are permitted to house inpatients in previously excluded “distinct part units” of the hospital
• Durable medical equipment that has been destroyed, damaged or is unusable can be replaced without meeting the face-to-face requirement. Providers should maintain documentation explaining the reason the equipment was replaced
• Waiving requirements that out-of-state providers be licensed in the state where they are providing services.
• Certain provider enrollment requirements are waived, such as application fees and site visits. CMS is also expediting pending and new enrollment applications and has established a toll-free hotline to expedite enrollment of certain Part B suppliers and providers.

HIPAA Waivers

On March 17^th, the department of Health & Human Services (HHS) indicated it will waive potential HIPAA penalties for good faith use of telehealth. HHS will also exercise enforcement discretion to allow providers to use services such as Facebook Messenger video, Skype and Google Hangout.  The government specifically identified vendors such as Skype for Business, Updox, VSee, Zoom for Healthcare, Doxy.me and Google G Suite Hangouts Meet that represent that they are HIPAA compliant and will sign a Business Associate Agreement.

HHS also provided additional guidance regarding HIPAA compliance.  For example, HHS clarified that disclosure of PHI for treatment purposes includes disclosing PHI to treat the patient or to treat a different patient. HHS also noted HIPAA permits disclosure for public health purposes including to people at risk of contracting or spreading coronavirus.

Conclusion

The state and federal governments are rapidly issuing waivers and orders impacting health care providers.  While most of the waivers give health care providers additional flexibility, others, like Governor Whitmer’s executive order place additional burdens on providers. Miller Johnson will continue to closely monitor this rapidly changing situation.  Please contact your Miller Johnson attorney with any questions.