The Bill largely seeks to continue Medicare’s hospital-at-home program through 2029, which provides resources for at-home care for patients who need acute-level care. The Bill would also eliminate the geographic originating site restrictions on telehealth visits through 2026. Absent these changes, the programs will expire at the end of 2024.

Significantly, the Bill also would empower the Secretary of Health and Human Services (“HHS”) to expand the categories of practitioners that may furnish reimbursable telehealth services. This would potentially allow for any healthcare professional who bills the Medicare program to be eligible to offer telehealth services. The Bill would further enable the Secretary to maintain an expanded list of eligible telehealth services, even after the existing law’s emergency period expires.

The Bill specifically benefits patients located in a rural location by explicitly allowing additional resources to be allocated to rural health clinics providing telehealth services. For example, the Bill would make permanent the ability of Federally Qualified Health Centers and Rural Health Clinics to provide telehealth services and provide reimbursements in those settings. This is crucial because Federally Qualified Health Centers and Rural Health Clinics are critical safety-net providers of primary care for underserved populations. Permitting these types of health centers to provide telehealth services as distant sites plays a major role in expanding and maintaining access to care in underserved and rural communities, and helps ensure continuity of care in those communities. 

While the Subcommittee advanced the Bill following its markup session, it still must pass in both the House and Senate. Providers should closely track the Bill’s progress. If it is not enacted in 2024, the telehealth flexibilities borne out of the COVID-19 public health emergency may end. Practitioners should be prepared to adjust their telehealth services and billing practices in the event the flexibilities expire. On the other hand, practitioners should be prepared to continue and potentially expand their telehealth services and flexibilities if the Bill is enacted and the Secretary expands the applicability of the flexibilities to additional categories of healthcare professionals. 

The population of Medicare patients that use telehealth has grown, likely in part due to the flexibilities—12% of Medicare users had a telehealth service in the third quarter of 2023, which is nearly double the percentage that received at telehealth service in the first quarter of 2020. If the flexibilities end, many Medicare patients who have grown accustom to telehealth will need to readjust how they seek out and receive healthcare services and providers will need to reassess how to best serve those patients. 

1. What Facts Applied to the Requestor and its Relationship with Physician Practices?

The OIG explained that the Requestor provides consulting services for practice optimization to physician practices (i.e., workflow assessment, data analytics, electronic health record consulting, compliance monitoring, biannual Medicare Merit-Based Incentive Payment System (“MIPS”) eligibility checks, annual MIPS-related training, auditing MIPS-related performance measures, and MIPS data submission support). In the proposed arrangement, the OIG considered three potential streams of remuneration: (i) Requestor’s physician-practice customers paid for Requestor’s consulting services, (ii) Requestor’s physician-practice customers may have received higher MIPS reimbursements from Medicare in connection with those services, and (iii) Requestor proposed providing a $25 gift card to its existing physician practice customers who recommended the Requestor’s services to other physician practices, plus an additional $50 gift card for any successful referrals.

The Requestor certified four key facts about itself to the OIG in seeking the Opinion: (i) the Requestor does not recommend the purchasing, leasing or ordering of any item or service for which payment may be made under a Federal health care program (an “FHCP”); (ii) none of the Requestor’s services are paid for, in whole or in part, directly or indirectly, by a FHCP; (iii) the Requestor would not provide any items or services outside of this referral arrangement that may be paid for, in whole or in part, directly or indirectly, by a FHCP, and (iv) Requestor does not have an ownership or investment interest in an entity that provides items or services that are paid for, in whole or in part, directly or indirectly, by a FHCP.

2. How Did OIG Interpret the Facts to Reach a Favorable Opinion Here?

The Opinion determined that the three potential streams of remuneration in Requestor’s referral arrangement do not implicate the Anti-Kickback Statute, and therefore, the OIG would not impose administrative sanctions because Requestor certified that its services do not and will not use FHCP funds nor recommend services that are reimbursable with FHCP funds under its referral arrangement. Specifically, the OIG reasoned that:

• First, the gift cards provided to customers would never be in return for referrals of services that are reimbursable by a FHCP (i.e., because Requestor certified that it does not recommend or provide any items or services paid for through a FHCP or have an ownership or investment interest in any entity that receives payments from a FHCP);
• Second, Requestor does not recommend the purchasing, leasing or ordering of an item or service for which payment may be made under a FHCP (i.e., meaning that any payment that Requestor receives from physician-practice customers does not implicate the Anti-Kickback Statute); and 
• Third, while Requestor’s consulting services may result in higher Medicare MIPS reimbursement for its physician practice customers, any remuneration those customers receive under the proposed arrangement would not be in return for referrals for any item or service paid under a FHCP.

3. How Should Physician Practice Vendors Evaluate Marketing Possibilities Now?

OIG’s Advisory Opinions are limited in scope to the particular facts outlined by, and may only be relied upon by, a given requestor, but interested parties can use them to inform their thinking on what they may or may not want to do in their own business in light of how the OIG thinks about different arrangements presented by requestors from time to time. The Opinion highlights that there may be a distinction under federal law between receiving remuneration for providing services that may cause an increase in a client’s FHCP reimbursement and actually receiving remuneration for recommending services or items that are paid for by a FHCP. By avoiding the technical prohibitions of the Anti-Kickback Statute, Requestor was able to have its proposed arrangement approved by the OIG. However, if Requestor’s arrangement directly or indirectly resulted in remuneration for referrals to providers for services reimbursable under a FHCP, then the OIG may have reached an unfavorable result.

Any physician practice vendor who is similarly situated to this Requestor in the Opinion might consider whether or not they could adopt or expand any existing referral reward programs, and whether or not it might want to seek an advisory opinion from OIG itself for a particular incentive payable to clients who are providers or suppliers enrolled in FHCPs. In considering any potential marketing ideas for customers who participate in FHCPs, vendors need to think about applicable state laws too. States also may have laws similar to the Anti-Kickback Statute. For example, New York law establishes criminal liability for receiving, offering, or paying any payment for referral of goods or services reimbursable by the state’s health care programs.[1] Similarly, California law establishes criminal liability for medical professionals who offer, deliver, or receive compensation for the referral of patients, clients or customers.[2] This means that a marketing practice permitted by Federal law or the law of another state may still be prohibited elsewhere. Given the significant federal and state penalties that can apply to impermissible relationships, it is worth vetting new possibilities thoroughly under all applicable laws before changing your marketing strategy.

FOOTNOTES

[1] N.Y. Soc. Serv. Law § 366-d(2).

[2] Cal. Bus. ProgProf. Code § 650; see also Cal. Welf. Inst. Code §14107.2(a)-(b).

IF YOU WANT TO SCREW UP YOUR DEAL, THEN:

1. Build the plane while you’re flying. If a deal is important enough to do, then it’s important enough to do the preparatory work before you launch the negotiations.
   • Doing your homework, setting realistic goals and boundaries, and surveying the environment and variables that can impact a deal are important first steps to take when considering a transaction.
   • These steps include defining what “success” really means, conducting preliminary internal diligence and operational polish to eliminate problems and deal delays, understanding the parties’ history and culture, and, importantly, considering your strategy related to labor unions, antitrust regulators, state attorneys general, and other governing bodies. In addition, know your key contract renewal dates so that you don’t wind up renegotiating a critical payor or provider agreement under the scrutiny of your transaction partner.
   • If you have bad news to share – investigations, litigation, adverse business changes – disclose entirely while the buyer is worried about competing bidders. Holding it back can break trust and imperil the time and resources you have invested.
2. Fail to recognize you are in a political campaign. Health care is always political at multiple levels, and successful healthcare transactions should be viewed as political campaigns you want to win – requiring tact, strategy and a clear narrative that goes beyond maximizing ROI.
   • Remember that your leading constituents are always “voting.” Physicians vote with their referrals. Nurses vote by changing jobs or organizing. Concerned patients call their Representative. Businesses switch their health plans.
   • The key to a successful campaign and transaction is to acknowledge the influential constituent groups and to leverage the powerful emotions involved in the healthcare industry to craft a compelling message that resonates at all levels and explains the benefit of the transaction.
3. Put your money where your mouth is. Making money and the need for “scale” the story of your transaction is not a winning approach, especially in these politically charged times.
   • The healthcare industry and its leaders are the subject of a great deal of scrutiny from regulators and consumers, with many convinced that providers prioritize profits over patients. This inherent skepticism means healthcare organizations considering a transaction should develop a communications and political strategy that appropriately frames the context of the deal and the intended goal before, during and after the deal process.
   • Lay the ground work with the right communications and engagement to soften the ground for what you want to achieve. Communicate the business rationale drivers consistently and often before the deal is announced.
4. Treat your people like mushrooms. Nothing creates and motivates opposition to a transaction like opaque communication and keeping people in the dark.
   • Responsible transparency – the right amount of light at the right time – is critical to a deal’s success. Plan out what to disclose early on and what later, and why.
   • Choose the right trusted messenger to foster an accepting environment. Always prepare for pushback. Being proactive can actually turn people who are detractors at the beginning into advocates. The power of “I was against this but now I’ve learned more and believe it’s the right thing” is real.
5. Forget to keep your friends close, and your enemies closer. A friend may not always be a friend, and an enemy – those whom, at first blush, might derail your deal — may not always be an enemy.
   • Seek out and listen to every key stakeholder to build trust and create allies and fully understand the political landscape
   • Remember that positions can change when dollars get large or deals get personal. And it’s all personal. Like all of us, individuals worry first about their employment, their position of respect, their income and their relevance. So listen, show respect, explain how the deal will work and create allies.
6. Dance to somebody else’s music. Always stay on message.
   • Remain in control of your deal message. Do not allow others to shift the focus away to their preferred battleground.
   • Anticipate the criticism – for every deal has its critics – and plan how to address it while remaining on message. Staying proactive – and not allowing your organization to be strategically distracted by negative voices — allows your organization to remain in control and the voice of reasoned authority.
7. Ignore your deal killers. Assess regulatory risk before beginning a deal and develop mitigation strategies for possible deal killers, including regulatory review delay.
   • With recent guidance changes from the Federal Trade Commission and Department of Justice, new state merger review laws, and active state attorneys general, there is increasing uncertainty about regulatory risks for both horizontal and vertical deals. Think about what you can share upfront with the antitrust regulators that will help them to better understand and scope the risk and benefit of your transaction.
   • Make regulators’ lives easier by doing their homework for them. Take the opportunity to provide your input on the industry and provide work product they can use to effectively communicate to their supervisors and stakeholders. Control your own message.
8. Make an epic mistake. Do not implement or convert a major technology system during a transaction. Remember Murphy’s Law: anything that can go wrong, will go wrong.
   • Large scale changes to major technology systems are complicated and may cause internal problems, distract employees, and result in reduced performance during critical stages of the deal process. Unless the main reason for the transaction is to complete an IT system conversion and get access to mission-critical technology, it is best to focus on the transaction instead of overloading your workforce and dividing attention.
9. Squirrel! Do not get distracted or lose sight of your deal strategy. Many issues will come and go over the course of a transaction process, each demanding attention. Address those issues worthy of your time, but don’t lose sight of the deal itself; drive the conversation back to your message and to what motivates your constituents.
10. Forget your Backup Parachute. Don’t assume that just because you start a deal that you will close that deal.
    • Many deals do not close. Having at least one viable contingency plan provides your organization an important safety net, as well as leverage in your deal negotiations. Without a viable alternative, your limits may be pushed until you are no longer negotiating a transaction, but negotiating your terms of surrender.

These are ten ways to screw up your own deal, but there are many more. In today’s regulatory and social climate, successful transactions demand the right team, effective preparation, communication strategies and consistent commitment to the ultimate goal. If you missed the webinar or want more detail or examples illustrating the above ways to screw up your deal, we encourage you to watch the recording of the webinar through the following link: 10 Ways to Screw Up Your Deal | Sheppard Mullin.

On Thursday, November 9, leaders from Sheppard Mullin and Jarrard Inc. will co-host a webinar discussing potential blunders that could sabotage a deal and best practices healthcare organizations can take to prevent them.

Sign up for the webinar here.

In a January 5, 2023, letter to state health officials, the Centers for Medicare & Medicaid Services (“CMS”) clarified a Medicaid and Children’s Health Insurance Program (“CHIP”) policy on the coverage and payment of interprofessional consultations (the “Guidance”). An interprofessional consultation occurs when the patient’s treating physician requests the opinion and/or advice from a specialist practitioner without the patient making face-to-face contact with the specialist practitioner. The new CMS guidance clarifies that it is permissible for Medicaid and CHIP to provide reimbursement for an interprofessional consultation when the consultation is for the direct benefit of the patient without the patient’s presence.^[1]

Previous Policy: Supporting Specialist Care Consultation

CMS’ former policy did not permit coverage and payment for interprofessional consultation in the absence of the in-person presence of the patient.^[2] Instead, the treating practitioner was paid an increased payment rate to include consultation where there was a separate arrangement between the treating and consulting practitioner in place. CMS’ previous policy with respect to interprofessional consultations was considered complex and created unnecessary barriers to care.^[3] The Guidance supersedes the previous policy that prohibited interprofessional consultation coverage and payment as a distinct service since direct coverage for a specialist required face-to-face interaction with the patient.^[4]

Mechanism: Process of Coverage and Payment for Interprofessional Consultation

For interprofessional consultations to be covered by Medicaid and CHIP, the consultation itself must be for the direct benefit of the patient. The benefit incurred by the patient must be relevant to their care, and the advice from a specialized practitioner must be from the specialist’s field of expertise.^[5] In order for interprofessional consultation to be covered under Medicaid and CHIP, both the treating and consulting practitioners must be enrolled in their state as a Medicaid or CHIP provider.^[6] Given that consultation may cross state lines, the consulting practitioner must be enrolled in Medicaid or CHIP in the state where the patient resides, but consulting practitioner only needs to be licensed in the their practicing state.^[7]

Regarding the interprofessional consultation payment structure, each state has the ability to create its own reimbursement methodology for such services. Pursuant to the Guidance, CMS is creating interprofessional consultation as its own distinct service where the payment can be made directly to the consulting providers, which can be adopted independently by individual states.^[8]

Significance of Interprofessional Consultation Coverage: Improving Patient Care

The role of interprofessional consultation is to broaden access to specialty care and promote interdisciplinary contributions to patient care.^[9] Team-based patient care has proven to improve patient outcomes and safety because of a reduction in medical errors.^[10] Specialists and the treating practitioner have unique perspectives and valuable insights on the patient that lend themselves to a more comprehensive, holistic view of the patient’s care. A physician’s busy lifestyle may not allow face-to-face time with other physicians to collaborate on patient-centered care. Technology and compensation for consultation bridges the gap for increased efficiency, synergy and, corroboration. CMS has given the states expanded flexibility to utilize telehealth to deliver services and broaden availability of interprofessional consultation.^[11]

Interprofessional collaboration combats medical errors, thus creating an improved patient experience that delivers better outcomes. This results in an overall reduction in healthcare costs.^[12] With the encouragement of interprofessional consultation coverage and payment structures becoming streamlined by the CMS guidance, it is expected that interprofessional collaboration will flourish because there is increased efficiency and reduced costs for health care entities. CMS has empowered the states to have an interprofessional collaborative approach.^[13]

States’ Role in the Payment Structures of Interprofessional Consultation

States have the choice whether to pay for interprofessional consultation.^[14] If they choose to do so, they must submit a state plan amendment (“SPA”) to add a payment methodology for qualifying interprofessional consultation services.^[15] CMS strongly suggests that states review and consider CMS-established billing code and payment rates when deciding on state payment rates for similar services. As an alternative, states could also look at behavioral health integration codes that allow consultation between practitioners.^[16] States are encouraged to change or eliminate the restriction on same-day billing because it impedes the purpose of collaborative consultation and blocks the integration of patient-centered care.^[17]

Conclusion: How to Make the Guidance Work for Healthcare Entities

CMS aspires to develop and advance access to specialty care by reducing existing administrative burdens on treating practitioners.^[18] This change in direction presents states and healthcare entities with the opportunity to produce a win-win scenario that simultaneously benefits patients and providers. Based upon the Guidance, practitioners will be able to increase their use of interprofessional consultations that have the potential to improve patient outcomes while lowering overall health care costs.

FOOTNOTES

[1] Centers for Medicare & Medicaid Services, Coverage and Payment of Interprofessional Consultation in Medicaid and the Children’s Health Insurance Program (CHIP) (Jan. 5, 2023) – *SHO 23-001 – Interprofessional Consultation (medicaid.gov)

[2] Centers for Medicare & Medicaid Services, Opportunities to Design Innovative Service Delivery System for Adult with a Serious Mental Illness or Children with a Serious Emotional Disturbance (Nov. 13, 2018) Opportunities to Design Innovative Service Delivery Systems for Adults with a Serious Mental Illness or Children with a Serious Emotional Disturbance (medicaid.gov)

[3] Chris Larson, CMS Singles Out Behavioral Health in Plan to Streamline Payment Between Primary Care, Speciality Care, Behavioral Health Business (Jan. 5, 2023) CMS Singles Out Behavioral Health in Plan to Streamline Payment Between Primary Care, Speciality Care – Behavioral Health Business (bhbusiness.com)

[4] Faridat Animashaun, CMS Updates Guidance for Coverage of Interprofessional Consultation, America’s Essential Hospitals (Jan. 9, 2023) CMS Updates Guidance for Coverage of Interprofessional Consultation – America’s Essential Hospitals

[5] Centers for Medicare & Medicaid Services, Coverage and Payment of Interprofessional Consultation in Medicaid and the Children’s Health Insurance Program (CHIP) (January 5, 2023) *SHO 23-001 – Interprofessional Consultation (medicaid.gov)

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Dahlke, S., Hunter, K., Reshef Kalogirou, M., Negrin, K., Fox, M., & Wagg, A., Perspectives about Interprofessional Collaboration and Patient-Centred Care, Canadian Journal on Aging / La Revue Canadienne Du Vieillissement, 39(3), 443-455 (2020) doi:10.1017/S0714980819000539; Will O’Connor, 5 Benefits of Interprofessional Collaboration in Healthcare, TigerConnect (Nov. 4, 2019) 5 Benefits of Interprofessional Collaboration in Healthcare | TigerConnect

[11] Centers for Medicare & Medicaid Services, Coverage and Payment of Interprofessional Consultation in Medicaid and the Children’s Health Insurance Program (CHIP) (Jan. 5, 2023) *SHO 23-001 – Interprofessional Consultation (medicaid.gov)

[12] Potential economic impact of integrated medical-behavioral healthcare, Milliman Research Report (Jan. 2018) https://www.milliman.com//media/milliman/importedfiles/uploadedfiles/insight/2018/potentialeconomic-impact-integrated-healthcare.ashx.

[13] Interprofessional Consultation: A Patient-Centered Referral Option, Comagine Health, Interprofessional Consultation: A Patient-Centered Referral Option (nrtrc.org)

[14] Centers for Medicare & Medicaid Services, Coverage and Payment of Interprofessional Consultation in Medicaid and the Children’s Health Insurance Program (CHIP) (Jan. 5, 2023) *SHO 23-001 – Interprofessional Consultation (medicaid.gov)

[15] Id.

[16] Id.

[17] See Roby, DH and Jones EE, Limits on Same-Day Billing in Medicaid Hinders Integration of Behavioral Health into the Medical Home Model, Psychological Services, Vol. 13, No. 1 (2016) https://doi.org/10.1037/ser0000044.

[18] Faridat Animashaun, CMS Updates Guidance for Coverage of Interprofessional Consultation, America’s Essential Hospitals (Jan. 9, 2023) CMS Updates Guidance for Coverage of Interprofessional Consultation – America’s Essential Hospitals

In a January 5, 2023, letter to state health officials, the Centers for Medicare & Medicaid Services (“CMS”) clarified a Medicaid and Children’s Health Insurance Program (“CHIP”) policy on the coverage and payment of interprofessional consultations (the “Guidance”). An interprofessional consultation occurs when the patient’s treating physician requests the opinion and/or advice from a specialist practitioner without the patient making face-to-face contact with the specialist practitioner. The new CMS guidance clarifies that it is permissible for Medicaid and CHIP to provide reimbursement for an interprofessional consultation when the consultation is for the direct benefit of the patient without the patient’s presence.^[1]

Previous Policy: Supporting Specialist Care Consultation

CMS’ former policy did not permit coverage and payment for interprofessional consultation in the absence of the in-person presence of the patient.^[2] Instead, the treating practitioner was paid an increased payment rate to include consultation where there was a separate arrangement between the treating and consulting practitioner in place. CMS’ previous policy with respect to interprofessional consultations was considered complex and created unnecessary barriers to care.^[3] The Guidance supersedes the previous policy that prohibited interprofessional consultation coverage and payment as a distinct service since direct coverage for a specialist required face-to-face interaction with the patient.^[4]

Mechanism: Process of Coverage and Payment for Interprofessional Consultation

For interprofessional consultations to be covered by Medicaid and CHIP, the consultation itself must be for the direct benefit of the patient. The benefit incurred by the patient must be relevant to their care, and the advice from a specialized practitioner must be from the specialist’s field of expertise.^[5] In order for interprofessional consultation to be covered under Medicaid and CHIP, both the treating and consulting practitioners must be enrolled in their state as a Medicaid or CHIP provider.^[6] Given that consultation may cross state lines, the consulting practitioner must be enrolled in Medicaid or CHIP in the state where the patient resides, but consulting practitioner only needs to be licensed in the their practicing state.^[7]

Regarding the interprofessional consultation payment structure, each state has the ability to create its own reimbursement methodology for such services. Pursuant to the Guidance, CMS is creating interprofessional consultation as its own distinct service where the payment can be made directly to the consulting providers, which can be adopted independently by individual states.^[8]

Significance of Interprofessional Consultation Coverage: Improving Patient Care

The role of interprofessional consultation is to broaden access to specialty care and promote interdisciplinary contributions to patient care.^[9] Team-based patient care has proven to improve patient outcomes and safety because of a reduction in medical errors.^[10] Specialists and the treating practitioner have unique perspectives and valuable insights on the patient that lend themselves to a more comprehensive, holistic view of the patient’s care. A physician’s busy lifestyle may not allow face-to-face time with other physicians to collaborate on patient-centered care. Technology and compensation for consultation bridges the gap for increased efficiency, synergy and, corroboration. CMS has given the states expanded flexibility to utilize telehealth to deliver services and broaden availability of interprofessional consultation.^[11]

Interprofessional collaboration combats medical errors, thus creating an improved patient experience that delivers better outcomes. This results in an overall reduction in healthcare costs.^[12] With the encouragement of interprofessional consultation coverage and payment structures becoming streamlined by the CMS guidance, it is expected that interprofessional collaboration will flourish because there is increased efficiency and reduced costs for health care entities. CMS has empowered the states to have an interprofessional collaborative approach.^[13]

States’ Role in the Payment Structures of Interprofessional Consultation

States have the choice whether to pay for interprofessional consultation.^[14] If they choose to do so, they must submit a state plan amendment (“SPA”) to add a payment methodology for qualifying interprofessional consultation services.^[15] CMS strongly suggests that states review and consider CMS-established billing code and payment rates when deciding on state payment rates for similar services. As an alternative, states could also look at behavioral health integration codes that allow consultation between practitioners.^[16] States are encouraged to change or eliminate the restriction on same-day billing because it impedes the purpose of collaborative consultation and blocks the integration of patient-centered care.^[17]

Conclusion: How to Make the Guidance Work for Healthcare Entities

CMS aspires to develop and advance access to specialty care by reducing existing administrative burdens on treating practitioners.^[18] This change in direction presents states and healthcare entities with the opportunity to produce a win-win scenario that simultaneously benefits patients and providers. Based upon the Guidance, practitioners will be able to increase their use of interprofessional consultations that have the potential to improve patient outcomes while lowering overall health care costs.

FOOTNOTES

[1] Centers for Medicare & Medicaid Services, Coverage and Payment of Interprofessional Consultation in Medicaid and the Children’s Health Insurance Program (CHIP) (Jan. 5, 2023) – *SHO 23-001 – Interprofessional Consultation (medicaid.gov)

[2] Centers for Medicare & Medicaid Services, Opportunities to Design Innovative Service Delivery System for Adult with a Serious Mental Illness or Children with a Serious Emotional Disturbance (Nov. 13, 2018) Opportunities to Design Innovative Service Delivery Systems for Adults with a Serious Mental Illness or Children with a Serious Emotional Disturbance (medicaid.gov)

[3] Chris Larson, CMS Singles Out Behavioral Health in Plan to Streamline Payment Between Primary Care, Speciality Care, Behavioral Health Business (Jan. 5, 2023) CMS Singles Out Behavioral Health in Plan to Streamline Payment Between Primary Care, Speciality Care – Behavioral Health Business (bhbusiness.com)

[4] Faridat Animashaun, CMS Updates Guidance for Coverage of Interprofessional Consultation, America’s Essential Hospitals (Jan. 9, 2023) CMS Updates Guidance for Coverage of Interprofessional Consultation – America’s Essential Hospitals

[5] Centers for Medicare & Medicaid Services, Coverage and Payment of Interprofessional Consultation in Medicaid and the Children’s Health Insurance Program (CHIP) (January 5, 2023) *SHO 23-001 – Interprofessional Consultation (medicaid.gov)

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Dahlke, S., Hunter, K., Reshef Kalogirou, M., Negrin, K., Fox, M., & Wagg, A., Perspectives about Interprofessional Collaboration and Patient-Centred Care, Canadian Journal on Aging / La Revue Canadienne Du Vieillissement, 39(3), 443-455 (2020) doi:10.1017/S0714980819000539; Will O’Connor, 5 Benefits of Interprofessional Collaboration in Healthcare, TigerConnect (Nov. 4, 2019) 5 Benefits of Interprofessional Collaboration in Healthcare | TigerConnect

[11] Centers for Medicare & Medicaid Services, Coverage and Payment of Interprofessional Consultation in Medicaid and the Children’s Health Insurance Program (CHIP) (Jan. 5, 2023) *SHO 23-001 – Interprofessional Consultation (medicaid.gov)

[12] Potential economic impact of integrated medical-behavioral healthcare, Milliman Research Report (Jan. 2018) https://www.milliman.com//media/milliman/importedfiles/uploadedfiles/insight/2018/potentialeconomic-impact-integrated-healthcare.ashx.

[13] Interprofessional Consultation: A Patient-Centered Referral Option, Comagine Health, Interprofessional Consultation: A Patient-Centered Referral Option (nrtrc.org)

[14] Centers for Medicare & Medicaid Services, Coverage and Payment of Interprofessional Consultation in Medicaid and the Children’s Health Insurance Program (CHIP) (Jan. 5, 2023) *SHO 23-001 – Interprofessional Consultation (medicaid.gov)

[15] Id.

[16] Id.

[17] See Roby, DH and Jones EE, Limits on Same-Day Billing in Medicaid Hinders Integration of Behavioral Health into the Medical Home Model, Psychological Services, Vol. 13, No. 1 (2016) https://doi.org/10.1037/ser0000044.

[18] Faridat Animashaun, CMS Updates Guidance for Coverage of Interprofessional Consultation, America’s Essential Hospitals (Jan. 9, 2023) CMS Updates Guidance for Coverage of Interprofessional Consultation – America’s Essential Hospitals

• Federal:
  • The Pentagon issued a memo providing that federal funds may be used to enable troops and their dependents to travel to obtain abortions. The memo also includes other protections for service members and their dependents, such as sufficient time off from work to seek abortion services.
  • The Administration for Children & Families (a division of the Department of Health and Human Services) directed Office of Refugee Resettlement staff to take reasonable steps to prioritize placement of immigrants who are pregnant minors and victims of sexual-based crimes in states without abortion bans, provide them with broad access to reproductive health care, and/or to facilitate access to pregnancy-related medical service and options, when requested.

• Arizona: An Arizona court order clarified that, until ongoing litigation over abortion within the state is settled, its 1864 abortion ban will not be enforced.
• California:
  • California’s attorney general announced a task force charged with enforcing reproductive rights and protecting individuals who seek abortion services.
  • The attorney general released guidance for out-of-state patients seeking abortion services in California.
  • In the November 8^th election, California voters voted in favor of Proposition 1, which included a state constitutional amendment to secure access to abortion and contraceptives.
• Kentucky: On August 18, 2022, the Kentucky Supreme Court refused to reinstate an injunction that would block a six-week abortion ban and trigger ban from taking effect, resulting in abortion remaining illegal following six weeks’ gestation (absent a medical emergency). There is no exception for rape or incest. Oral arguments were heard by the Kentucky Supreme Court on November 15, 2022, but an order or decision has not yet been issued. It remains to be seen whether the November 8^th election, during which Kentucky voters voted against Amendment 2 (which would have eliminated any possibility that the state’s constitution could be interpreted as creating a right to an abortion), will have any effect on the outcome of this case.
• Michigan: Before the November 8^th election and after the Dobbs decision, a dormant state law banning abortion was temporarily blocked by courts. Michiganders voted in favor of Proposal 3, to add the right to abortion to the state constitution, which will prevent a situation where the court ruling could be reversed on appeal.
• Montana: In the November 8^th election, Montana voters rejected Referendum 131, which would have required medical workers to provide life-saving medical intervention to infants born prematurely or face penalties of up to $50,000 in fines and up to 20 years in prison.
• North Carolina: Providers in North Carolina, in support of their motion for a preliminary injunction, argued that certain licensure restrictions on providing medication abortions should be lifted to expand access to abortion services for North Carolinians and out-of-state patients traveling to North Carolina seeking abortion services. If granted, advanced practice clinicians, such as nurse practitioners, midwives, and physician assistants, would be permitted to provide medication abortion to alleviate the increased burden on abortion access.
• North Dakota: The state’s restrictive abortion ban was placed on hold following an order granting a preliminary injunction, which prevents North Dakota’s trigger ban from taking effect.
• Ohio: After a trial judge blocked the state’s ban on abortion after six weeks of pregnancy (resulting in abortions up to 22 weeks of pregnancy remaining legal), the Ohio Attorney General’s office appealed the decision.
• South Carolina: A ban on abortion after six weeks was temporarily blocked – as a result, abortions in South Carolina continue to be temporarily legal until 20 weeks’ gestation. South Carolina providers argued in their reply to the Attorney General’s brief that the ban would violate individuals’ right to privacy under the state’s constitution.
• Texas: The Biden Administration appealed to the Fifth Circuit, requesting reconsideration of the district court’s decision to the block implementation of HHS’s guidance in the State of Texas, which provides that, under EMTALA, abortions may need to be furnished to individuals seeking emergency medical treatment, regardless of whether abortions are lawful in that state, in certain circumstances.
• Vermont: In the November 8^th election, Vermont voters passed Proposal 5, providing individuals in the state with a constitutional right to personal reproductive autonomy.

The Jackson v. Dobbs decision and the midterm elections have resulted in major changes to abortion-related laws and policies in the United States. As the legal landscape changes rapidly, we will continue to provide updates to keep you informed about new developments at the federal and state levels. If you have any questions about these laws or their impact on your company, please contact a member of the Healthcare Team.

*The law, policy and regulatory climate surrounding the Dobbs decision is complex and quickly developing. The information included in this article is current as of the morning of November 10, 2022, but it does not address all potential legal issues or jurisdictional differences, and the information presented may no longer be current.

If the Pandemic has done anything, it has exacerbated the disparities within the U.S. health care system, by pointing out the lack of access to many services such as physical and behavioral health services. However, the Pandemic also served as a medium for telehealth’s expansion, by giving access to health services, either through virtual or audio-only visits. CMS recognizes the value of learning lessons from the Pandemic and moving forward into a system that focuses on access to quality health services.

This temporary extension of Medicare covered telehealth services  will also see additional services added to the coverage list, allowing more data to be collected on the efficacy of these services. CMS has noted however, that it does not intend to permanently add these proposals as they do not meet the criteria for Medicare coverage that are currently on the books.

The PFS proposal provides key developments for the expansion of telehealth coverage, including but not limited to:

1. Allowing some telemental health services to be provided via audio-only calls;
2. Removing geographic restriction for diagnosis, evaluation, or treatment of a mental health disorder;
3. Allowing a patient’s home to serve as a site for telehealth visits; however, restrictions still require the patient to have an in-person visit within six months prior to the virtual visit;
4. Proposing a wait on a transition in the Medicare Shared Saving Programs to electronic quality measure reporting;
5. Changing the Quality Payment Program, improving health equity by seeking feedback on data gathering from providers, and including a 3.75% reduction to the conversion factor; and
6. Drafting a modest rule that will have a positive impact on telehealth stakeholders, who can comment on the proposed rule through September 13, 2021.

The PFS also delays the enforcement of the Appropriate Use Criteria program (the “AUC Program”) that mandates clinical support mechanisms for certain diagnostic imaging tests. The enforcement was meant to go into effect in January 2022, but the yearlong extension will enable hospitals and other providers to maintain their ongoing response to the COVID-19 crisis while allowing essential education and operation testing of the AUC Program to occur.

Though telehealth use has declined due to increased vaccination rates causing more people feeling comfortable with in-person visits, telehealth visit rates are still much higher than before the Pandemic. Most stakeholders expects the telehealth visit rates to remain at their current levels.

This response from CMS is in anticipation of a future in which demand for telehealth is stable and useful to a greater number of individuals. Though unable to permanently add coverage to Medicare, the current extension will lay the groundwork for more inclusive coverage that enables benefits for telehealth stakeholders and patients.

*Gabriela Garcia-Bou is a law clerk in Sheppard Mullin’s New York office.