Teleheath Waiver: Due to COVID-19, Medicare opening telehealth to non-public facing applications


In the wake of the Coronavirus Disease-2019 (COVID-19) Pandemic, the Medicare program is expanding telehealth coverage enabling clinicians to provide a wider range of health care services to their patients without those patients having to travel to a health care facility thereby reducing exposure. The American Society of Nephrology (ASN) strongly supports this bold move. Retroactive to March 6, 2020, Medicare, under waiver authority, will temporarily allow and pay clinicians to provide telehealth services for beneficiaries residing across the entire country.

Nephrologists have had access to a broader range of telehealth options than most other physicians for several years, but this action will expand more telehealth options to nephrologists and to a range of healthcare professionals, such as doctors, nurse practitioners, clinical psychologists, and licensed clinical social workers, and make every home in the country an eligible originating site. Patients will now be able to receive various services through telehealth, including common office visits, mental health counseling, and preventive health screenings. The issue of replacing in-center visits for home dialysis patients with telehealth is still being resolved at this moment (and changes are occurring by the hour), so ASN will report back when the policy is clearer.

A truly breakthrough step in this process came from the Office for Civil Rights (OCR) at the Department of Health and Human Services (HHS). OCR is responsible for enforcing certain regulations issued under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to protect the privacy and security of protected health information. OCR wrote “During the COVID-19 national emergency… covered health care providers subject to the HIPAA Rules may seek to communicate with patients, and provide telehealth services, through remote communications technologies. Some of these technologies…may not fully comply with the requirements of the HIPAA Rules. OCR will exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency. This notification is effective immediately.”

In other words, clinicians who want to use audio or video communication technology to provide telehealth to patients during this period can use any non-public facing remote communication product that is available to communicate with patients. This “exercise of discretion” by OCR applies to telehealth provided for any reason, regardless of whether the telehealth service is related to the diagnosis and treatment of health conditions related to COVID-19.

Some examples of these telehealth exceptions are:

  • Using a video chat application connecting the clinician or patient’s phone or desktop computer.
  • Using popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, without risk that OCR might seek to impose a penalty for noncompliance with the HIPAA Rules

Under this Notice, however, Facebook Live, Twitch, TikTok, and similar video communication applications are considered public facing, and must not be used in the provision of telehealth by covered health care professionals.

The Centers for Medicare and Medicaid Services (CMS) is expanding Medicare’s telehealth benefits under the 1135 waiver authority and the Coronavirus Preparedness and Response Supplemental Appropriations Act.