On March 13, 2020, President Trump issued a proclamation that the novel coronavirus (“COVID-19”) outbreak in the United States constituted a national emergency. Following this proclamation, pursuant to section 1135(b) of the Social Security Act, the Secretary of the Department of Health and Human Services (“HHS”), Alex Azar, invoked his authority to waive or modify certain requirements of titles of the Act as a result of the consequences of the COVID-19 pandemic, to the extent necessary, as determined by the Centers for Medicare & Medicaid Services (“CMS”), to ensure that sufficient health care items and services are available to meet the needs of individuals enrolled in the Medicare, Medicaid, and Children’s Health Insurance Programs (“CHIP”). This authority took effect on March 15, 2020, with a retroactive effective date of March 1, 2020 and will terminate at the conclusion of the public health emergency period.[1] Pursuant to this authority, HHS announced a number of nationwide blanket waivers, including a waiver related to telehealth, in order for providers to respond to the COVID-19 public health emergency.[2]

Separate from and in addition to the blanket waivers, the Secretary’s authority under Section 1135 also allows CMS to grant Section 1135 waivers to states that request CMS to temporarily waive compliance with certain statutes and regulations for its Medicaid programs during the time of the public health emergency. So far, many states have requested these additional flexibilities in order to focus their resources on combatting the outbreak and providing the best possible care to Medicaid enrollees in their states. CMS has been rapidly approving these Section 1135 waiver requests, but it is important to recognize that not all state requests are created equal with respect to utilizing telehealth / telemedicine services during the public health emergency. Based on a review of the publicly available state request letters, it is clear that some states have prioritized use of telehealth in order to respond to COVID-19, while other states have not, or have not yet requested similar flexibilities related to provision of telehealth services. Examples of states that have prioritized greater use of telehealth include:

• California: The state requested flexibility for telehealth and virtual communications to make it easier for providers to care for people in their homes. Specifically, California requested flexibility to allow telehealth and virtual/telephonic communications for covered State plan benefits, such as behavioral health treatment services, and waiver of face-to-face encounter requirements for Federally Qualified Health Centers and Rural Health Clinics, among others. The state also sought reimbursement of virtual communication and e-consults for certain providers. CMS approved this waiver request on March 23, 2020.

• Illinois: The Illinois Department of Healthcare and Family Services waiver request, approved on March 23, 2020 by CMS, sought flexibility of documentation requirements, including the lack of documentation of consent for a telehealth consult. Like several other states, Illinois also requested CMS to allow providers to use non-HIPAA compliant telehealth modes from readily available platforms, such as Facetime, WhatsApp, Skype, etc., to facilitate a telehealth visit or check-in at the location of the patient, including the patient’s home.

• Louisiana: The state Department of Health’s waiver request, approved on March 23, 2020 by CMS, sought, among other things, a temporary suspension of the need for a business associate agreement under HIPAA as required under 45 CFR 164.308(b)(3), if using a reasonably secure program for telehealth services. Louisiana also requested a waiver of limitations on telehealth and virtual communication relative to originating site requirements in federal law.

• Maryland: The Maryland Department of Health requested flexibility from CMS so that its fee-for-service Medicaid and HealthChoice (Maryland’s managed care program) enrollees could use the telephone to receive care if they do not have access to an appropriate device to facilitate delivery of the service through synchronous real-time audio and video connection, assuming such service can be appropriately delivered by telephone. In addition, Maryland requested waiver of the prior authorization requirement for a face-to-face assessment in order for a patient to receive hospice services, to the extent the assessment may be performed telephonically. CMS approved Maryland’s waiver request on March 26, 2020.

• North Carolina: The state Department of Health and Human Services sought to temporarily allow the use of non-HIPAA compliant telehealth technologies. On behalf of its hospital providers, the state also asked for certain flexibilities related to billing for telehealth services. CMS approved North Carolina’s waiver request on March 23, 2020.

• South Dakota: South Dakota sought a waiver to allow Medicaid to pay for the same telehealth services that Medicare has been granted authority to pay for, including for those services furnished while a patient is in his or her home. The state also asked for a waiver to allow physical therapy and occupational therapy to be delivered utilizing real-time audio/visual telehealth when certain conditions apply such as when a person has contracted the COVID-19 infection or is at high risk. CMS approved South Dakota’s waiver request on March 24, 2020.

• Washington: The state’s waiver request, approved by CMS on March 19, 2020, contains extensive flexibilities related to telehealth. Some of these include, waiver of HIPAA security requirements for video communication in a telehealth visit, waiver to eliminate the requirement that in order to bill for a telehealth service a provider must have billed that Medicaid or Medicare enrollee for a service within the previous three years, and waiver for providers to conduct resident, medical, dental, or behavior health appointments via telehealth for intermediate care facilities for individuals with intellectual disabilities.

Although states may use a number of authorities to increase access to care during COVID-19, the above states have taken action to utilize technology to aid their Medicaid populations’ access to necessary care during the COVID-19 outbreak. There is little doubt that additional states will follow suit and request Section 1135 waivers, but providers must carefully track what specific state waivers are requesting with respect to greater use of telehealth, to understand what may or may not be permissible during the time period of this national public health emergency. You can track CMS approvals of state Section 1135 waiver requests here.

[1] Waiver or Modification of Requirements Under Section 1135 of the Social Security Act (Mar. 13, 2020), available at https://www.phe.gov/emergency/news/healthactions/section1135/Pages/covid19-13March20.aspx.

[2] See EBG’s client alert titled “New and Pre-Existing Federal Waivers and Flexibilities Available to Health Care Providers During a National Emergency,” available at https://www.ebglaw.com/helaine-i-fingold/news/new-and-pre-existing-federal-waivers-and-flexibilities-available-to-health-care-providers-during-a-national-emergency/ for additional information on the nationwide blanket waivers.