Following Governor Northam’s Executive Order declaring a state of emergency in Virginia, the Virginia Department of Medical Assistance Services (“DMAS”) has issued a new guidance document that offers increased flexibility for providers during this public health emergency. The policy changes include, among other things, expanded telehealth coverage and the waiver of some utilization review requirements, such as face-to-face meetings and prescription drug limits.
This client advisory discusses the highlights of the policy changes, but providers should read the document in full to understand the requirements that specifically apply to their service. The policy changes included in the guidance are effective immediately and shall remain in effect for the duration of the Governor’s Emergency Declaration. DMAS continues to assess its policies and will issue additional updates and guidance in the coming weeks. A copy of the full memorandum setting forth the current changes is available here.
Billing Allowed for COVID-19 Testing and Certain Related Services
DMAS now allows Virginia Department of Health (“VDH”)-enrolled clinical laboratories and healthcare facilities to bill for medically necessary and clinically appropriate COVID-19 tests for dates of service after February 4, 2020. DMAS has established two billing codes for CDC testing and non-CDC testing. While private laboratory tests do not need to receive VDH approval, patients seeking testing through the Division of Consolidated Laboratory Services (the State Laboratory) must meet clinical and epidemiological criteria before the tests will be approved by VDH.
Service authorization is not required, provided the laboratories have Clinical Laboratory and Improvement Amendments (“CLIA”) certification. All Medicaid Managed Care Plans (“MCOs”) and Medicaid fee-for-service (“FFS”) also cover COVID-19 testing.
In addition, DMAS will cover medically necessary services to treat or alleviate COVID-19 related symptoms, as will all Medicaid MCOs and FFS providers. The CDC has established coding guidelines for health care encounters and deaths related to COVID-19, including pneumonia, bronchitis, and various respiratory infections, to be used when billing.
Expansion of Covered Services Provided via Telehealth
To increase access to medically necessary services during the current public health crisis while limiting potential exposure or transmission, DMAS has expanded its coverage of telehealth as a method of service delivery. These current expansions are initial guidance that will likely change to provide additional needed future flexibility. DMAS notes that Medicaid MCOs might also provide their own additional flexibility in the provision of telehealth during this time.
Telehealth services is defined by DMAS to mean the use of telecommunications and information technology to provide access to health assessments, diagnosis, intervention, consultation, supervision, and information for both medical and behavioral health services. This can include the use of interactive and secure medical tablets, remote patient monitoring, and store-and-forward technology. Providers must continue to adhere to the same standards of clinical practice and record keeping when employing telehealth services as they would in a facility or office setting.
DMAS has relaxed certain telehealth requirements for the reimbursement of Medicaid-covered services delivered through telehealth. For example, DMAS is temporarily allowing telehealth services to be offered through audio-only connections rather than the typically required audio and visual connections. DMAS is also waiving the requirement that a provider’s staff member be with the patient at the originating site. During this public health crisis, DMAS will allow the home as the originating site in order to provide essential services to those who are quarantined, diagnosed with or symptomatic of COVID-19, or those at high risk of serious illness from COVID-19. Clinicians should use clinical judgment when determining whether the home is an appropriate originating site.
Providers must ensure the same rights to confidentiality and security as provided in face-to-face services to the extent possible. Providers must also obtain the patient’s informed consent to the use of telehealth and advise members of relevant privacy considerations, an important distinction from Medicare requirements. Providers should maintain medical necessity documentation to support the service delivery model chosen, as well as documentation supporting the medical necessity for any ongoing delivery of the service through telehealth.
DMAS will allow telehealth delivery of the following behavioral health services: 1) care coordination, case management, and peer services; 2) service needs assessments and all treatment planning activities; 3) outpatient psychiatric services; 4) community mental health and rehabilitation services; and 5) addiction recovery and treatment services. Early Intervention providers are permitted to use telehealth or remote care delivery for all services, including developmental services, physical therapy, occupational therapy, and speech-language pathology.
DMAS has created new billing codes to reflect the provision of services through telehealth, in addition to existing codes available for certain telehealth-focused services. Providers are to update their systems and procedures as soon as possible to allow modifiers or telehealth POS when billing for services delivered via telehealth. DMAS intends to require the use of these codes once the initial phase of this emergency is over and will provide additional information in future memoranda. DMAS and the MCOs will pay for services delivered via telehealth and billed with or without telehealth modifiers at the same rate as if the service were provided face-to-face.
Importantly, the Office of Civil Rights and the Department of Health and Human Services will not impose penalties for noncompliance with the requirements under HIPAA against covered providers in connection with the good faith provision of telehealth services during the nationwide health emergency. This applies to all telehealth provided and not just treatment related to COVID-19.
Face-to-Face Requirements Relaxed in Certain Settings for All DMAS-Covered Services
In recognition of the need to deliver services through telehealth and the increased risk of face-to-face contact for a subset of individuals, providers are to limit the amount of face-to-face contacts to the extent to possible and shall minimize or avoid face-to-face contact entirely if a member or other individual in the home or facility is experiencing symptoms of COVID-19. Face-to-face requirements, including assessments, reassessments, and service delivery are waived for all members unless there is a compelling concern for the member’s health, safety, and welfare as determined by the licensed staff. Face-to-face meetings are to be replaced with phone calls with members and appropriate documentation.
DMAS has provided detailed guidance on requirements that are waived or relaxed for various care programs and services provided under waivers. In general, face-to-face requirements are generally suspended or waived until the end of the public health emergency and shall be replaced with telephonic communications where appropriate. This is intended to further protect members and workers from exposure to COVID-19. Required DMAS forms shall be used to document these telephonic visits and meetings, and documentation shall be maintained to support any rationale for utilizing telephonic meetings instead of face-to-face meetings for any patient. Providers are instructed to obtain written consent, authorization, and confirmation of participation in telephonic meetings rather than face-to-face meetings with a written signature within 45 days after the end of the emergency. Various survey visits have been suspended for an initial period of 30 days and will be re-evaluated after that time to determine when they should resume.
Co-Pays and Service Authorization
Member co-payments, to include any out of pocket costs in Medicaid and FAMIS, are to be suspended effective March 13, 2020, to encourage members to seek needed care and treatment. DMAS has directed MCOs to relax out-of-network authorization requirements and pay the Medicaid fee schedule to expedite needed care.
Under this guidance, providers are still required to submit necessary paperwork for service authorization, new request for services, and requests for changes in services. However, service authorizations for developmental disability waivers shall be retroactively approved for up to 10 days until the end of the emergency, and service authorization for group homes and day support shall be retroactively approved for up to 10 days until May 1, 2020. Service authorization requirements for behavioral health services shall remain the same. Additional extensions and waivers for particular services are included as an attachment to DMAS’s memo.
Changes to Pharmacy Benefits and Dispensing Requirements
To limit the risk of patients running out of prescriptions during the public health emergency, FFS and Medicaid MCOs are directed to suspend all drug co-payments and cover a maximum of a 90-day supply for all drugs, excluding Schedule II drugs such as opioids or amphetamines. Any “too soon” edits on refills shall be suspended entirely for drugs prescribed for 34 days or less. Patients with a 90 day dispensed prescription will only be able to get a subsequent 90 day supply of drugs after 75% of the prescription has been used, at about day 68. Pharmacists should refer to the Virginia Board of Pharmacy’s guidance for emergency fill procedures and further guidance related to the COVID-19 emergency.
Treatment of Opioid Use Disorder
DMAS has also provided guidance in an effort to ensure continued treatment of individual with Opioid Use Disorder (“OUD”) during this emergency. In order to prioritize the availability and continuity of treatment for OUD, the DEA has lifted the requirement that a prescribing provider have conducted at least one in-person medical evaluation before prescribing a controlled substance scheduled II-V, including buprenorphine and buprenorphine/naloxone for addiction treatment. For the duration of the public health emergency, DEA-registered practitioners may issue prescriptions to patients from whom they have not conducted an in-person medical evaluation, provided that: 1) the prescription is issued for a legitimate medical purpose; 2) a telehealth evaluation is conducted using an audio-visual, real time, two way interactive communication system; and 3) the practitioner is acting in accordance with applicable Federal and State law.
Providers are advised to write prescriptions for naloxone for members in case of interruptions in community-based distribution. DMAS has also determined that a member’s home may serve as the originating site for prescription of buprenorphine due to the public health emergency.
Procedural Changes relating to Eligibility and Appeals
DMAS seeks to ensure continued coverage and access to coverage during the Emergency Declaration. Uninsured patients are encouraged to apply online for the fastest service. DMAS is seeking federal authority to accept client appeals filed during the public health emergency that miss the normal filing deadlines. If granted, DMAS will proceed with those appeals as if the deadlines were met. For appeals filed during the state of emergency, Medicaid members are deemed to automatically keep their health coverage and have access to Medicaid-covered services while the appeal is proceeding. Medicaid managed health plans are instructed to approve continued coverage while the appeal process is underway. All currently scheduled hearings will be conducted by telephone, and DMAS will grant requests to reschedule hearings.
As for provider appeals, DMAS is waiving certain deadlines. For example, providers affected by the COVID-19 emergency can request a hardship exemption to the normal deadline to file an appeal. Such request must state an exemption is being requested and provide grounds for an exemption. All deadlines after an appeal has been filed are extended for the period of the state of emergency declared by the Governor. This applies to informal appeal deadlines, including case summaries, informal fact finding conferences, document submission after the informal fact finding conference, and the informal appeal decision. The following formal appeal deadlines are also extended: documentary evidence, hearing dates, post-hearing briefs, recommended decisions, exceptions, and the Final Agency Decision.
Both provider and client appeals may be submitted electronically via email at Appeals@DMAS.Virginia.Gov, and all informal fact-finding conferences and formal hearings will be conducted via telephone during the state of emergency. Unfortunately for those waiting for decisions on prior appeals, DMAS has announced that decisions may not be issued within the normal timeframe depending on the length of the state of emergency. For example, if the state of emergency lasts 50 days, the above listed deadlines (including final decisions) are extended 50 days.
DMAS has responded to the current state of emergency related to COVID-19 by relaxing certain requirements and increasing the coverage for provision of care delivered via telehealth. DMAS has also authorized increased supplies of prescriptions to cover patients who may become subject to quarantine or otherwise are impacted by COVID-19. From an operational standpoint, DMAS is hitting “pause” on its appeals process to allow providers to focus on rendering care during this time and to ensure the patients remain covered during this health care emergency without interruption to benefits.
While some requirements have been lifted for the duration of the state of emergency, providers should ensure that they are thoroughly and effectively documenting their billing and care provided. As the policy changes go into effect immediately, there will be a learning curve. DMAS has indicated that oversight activities and CMS will take this into account, but proper documentation will aide providers in justifying their rationale for providing care and billing practices during this time.
The initial guidance is detailed, and providers and members can expect further guidance and changes as DMAS continues to evaluate and respond to concerns during this public health emergency. Providers are encouraged to continue following for updates on the DMAS website.
Should you, your practice, or your business have any questions about the implications of this Act, please contact Peter Mellette, Nathan Mortier, Harrison Gibbs, Elizabeth Dahl Coleman, or Scott Daisley at Mellette PC.
This client advisory is for general educational purposes only and does not cover every provision of the issued guidance document. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.
 No originating site fee will be paid if the service is provided at a member’s home.
 Further explanation on OCR’s loosened compliance with HIPAA rules is available at: https://www.hhs.gov/about/news/2020/03/17/ocr-announces-notification-of-enforcement-discretion-for-telehealth-remote-communications-during-the-covid-19.html.
 This applies to CCC Plus waivers, developmental disability waivers, and behavioral health services.
 A full list of Schedule II drugs is available at: https://law.lis.virginia.gov/vacode/title54.1/chapter34/section54.1-3448/.