CARES Act Funding and Support for Telehealth

As part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Congress appropriated significant funding for a number of telehealth programs and initiatives, including funding for programs administered by the Federal Communications Commission (FCC), the Department of Agriculture's Rural Utility Service (RUS), the Department of Veterans Affairs, the Department of Health and Human Services (HHS), and the Indian Health Service.¹ In addition, the CARES Act authorizes HHS to take a number of steps to make telehealth services more readily available nationally. This advisory focuses in-depth on the funding allocated to the FCC and surveys the other telehealth initiatives in the CARES Act.

Overview of FCC Telehealth Programs

Through the CARES Act, Congress appropriated $200 million for the FCC "to support efforts of healthcare providers to address coronavirus by providing telecommunications services, information services, and devices necessary to enable the provision of telehealth services" during the pendency of COVID-19. On April 2, 2020, the FCC issued an order establishing a new, short-term program to distribute that money: the COVID-19 Telehealth Program.

The order also establishes a second new program, the Connected Care Pilot Program, which will complement the new COVID-19 Telehealth Program. The $100 million, three-year pilot had been in the works since last summer and will draw its funding from the federal Universal Service Fund (USF) rather than funds appropriated under the CARES Act. One of the main goals of the pilot is to give the FCC data on how to best structure a funding program for devices and services directly used by patients rather than solely by healthcare facilities themselves.

COVID-19 Telehealth Program

The COVID-19 Telehealth Program will be open to eligible healthcare providers, whether located in rural or non-rural areas, and will provide eligible healthcare providers support to purchase telecommunications, information services, and connected devices to provide "connected care services" in response to COVID-19.

The COVID-19 Telehealth Program will provide selected applicants full funding for eligible services and devices, in contrast with existing USF healthcare connectivity programs that require "co-pays" from the healthcare facilities. The $200 million will be awarded on a rolling basis until the funding is exhausted or until the current pandemic has ended. Grants are not expected to exceed $1 million per applicant. Applications will be accepted after publication of the FCC's order in the Federal Register. Under the circumstances, we expect that could happen quickly.

Eligible Services

The order defines "connected care services" eligible for support as telehealth services that use broadband internet access service-enabled technologies to deliver remote medical, diagnostic, patient-centered, and treatment-related services directly to patients outside of traditional brick-and-mortar medical facilities—including to patients in their homes, rather than at a healthcare provider's physical location.

Services include, but are not limited to, remote patient monitoring (e.g., use of patient reporting outcome platforms, glucometers, pulse oximeters, sphygmomanometers, chest straps, wearables, passive sensors, or other devices to consistently monitor patient vitals), patient health education, store and forward services (e.g., asynchronous transfer of patient images and data for interpretation by a physician), and synchronous video consultations and visits.

Who Is Eligible

Consistent with the law governing the USF healthcare support programs, the FCC has identified the following as eligible for funding under the COVID-19 program:

1. Post-secondary educational institutions offering healthcare instruction, teaching hospitals, and medical schools;
2. Community health centers or health centers providing healthcare to migrants;
3. Local health departments or agencies;
4. Community mental health centers;
5. Not-for-profit hospitals;
6. Rural health clinics;
7. Skilled nursing facilities; and
8. Consortia of healthcare providers consisting of one or more entities falling into the first seven categories.

An important difference from existing FCC programs, however, is that non-rural entities may directly participate without needing to be part of a consortium of rural entities. Each separate site or location of a healthcare provider is considered an individual healthcare provider site for eligibility determination purposes.

How to Apply

Because of the FCC's desire to move quickly, it has not issued a separate form for COVID-19 Telehealth Program funding applications. Rather, it has established a separate, streamlined application process. To be considered for participation in the COVID-19 Telehealth Program, interested eligible healthcare providers must submit applications that, at a minimum, contain the following information:

• Names, addresses, county, and healthcare provider numbers (if available), for healthcare providers seeking funding through the COVID-19 Telehealth Program application and the lead healthcare provider for applications involving multiple healthcare providers.
• Contact information for the individual who will be responsible for the application (telephone number, mailing address, and email address).
• Description of the anticipated connected care services to be provided, the conditions to be treated, and the goals and objectives. This should include a brief description of how COVID-19 has impacted the applicant's community, expected patient population, and the approximate number of patients that could be treated by the healthcare provider's connected care services for COVID-19. If the funding is intended for treating patients without COVID-19, describe how it would free up resources that will be used to treat COVID-19 and/or how this would otherwise prevent, prepare for, or respond to the disease by, for example, facilitating social distancing.
• Description of the estimated number of patients to be treated.
• Description of the telecommunications services, information services, or "devices necessary to enable the provision of telehealth services" requested, the total amount of funding requested, as well as the total monthly amount of funding requested for each eligible item. If requesting funding for devices, description of all types of devices for which funding is requested, how the devices are integral to patient care, and whether the devices are for patient use or for the healthcare provider's use. As noted above, monitoring devices (e.g., pulse-ox, BP monitoring devices) will only be funded if they are connected.
• Supporting documentation for the costs indicated in the application, such as a vendor or service provider quote, invoice, or similar information.
• A timeline for deployment of the proposed service(s) and a summary of the factors the applicant intends to track that can help measure the real impact of the supported services and devices.

Additionally, COVID-19 Telehealth Program applicants will also be required to certify that they will comply with: the Health Insurance Portability and Accountability Act (HIPAA) and other applicable privacy and reimbursement laws and regulations; applicable medical licensing laws and regulations, as waived or modified in connection with COVID-19; and applicable COVID-19 Telehealth Program requirements and procedures, including the requirement to retain records to demonstrate compliance with the COVID-19 Telehealth Program requirements and procedures for three years following the last date of service, subject to audit.

Connected Care Pilot Program

Although not a creation of the CARES Act, the FCC's April 2 order formally establishes the Connected Care Pilot Program, which will make available up to $100 million over three years to examine how the USF can support telehealth services. It will draw its funding from the federal USF rather than funds appropriated under the CARES Act. Existing USF healthcare connectivity programs do not subsidize devices or at-home telehealth communications services for patients, and almost exclusively fund rural healthcare facilities. Pilot Program funds will be available to medically underserved populations in both rural and non-rural areas.

The Pilot Program will partially subsidize eligible healthcare providers' costs of providing telehealth services, with a particular emphasis on supporting these services for eligible low-income Americans and veterans, even in urban areas. This will be the first USF-funded healthcare program to provide funding on a means-tested basis or based on prior military service.

The deadline for filing applications for the pilot will be the later of:

• (i) 45 days after publication of rules governing the pilot; or
• (ii) 120 days after the order's release (which falls on July 1, 2020).

Rural Utilities Service (RUS) Program Funding Under CARES

The CARES Act provides additional funds for telemedicine in rural areas through the Rural Utilities Service (RUS) in the Department of Agriculture. The legislation directs an additional $100 million funding to the existing RUS pilot program for rural broadband loans and grants, known as the ReConnect Program. DWT previously summarized the ReConnect Program here. Entities eligible for these loans and grants include most state and local governmental entities, federally recognized tribes, nonprofits, and for-profit businesses.

The CARES Act also appropriates $25 million to support, among other things, telemedicine and broadband in rural areas. The Department of Agriculture issued a press release indicating that it will announce in coming weeks when these funds are available, in addition to opening up a new application window for other existing programs.

Medicare Coverage for Telehealth

The CARES Act also includes several provisions easing regulatory requirements applicable to Medicare coverage for telehealth, and promoting the use of telehealth during public health emergencies.

• Increasing Medicare Telehealth Flexibilities During Emergency Period - The CARES Act removes the requirement that services must be furnished by a "qualified provider" in order to be eligible for Medicare reimbursement. The term "qualified provider" was added to Section 1834(m) of the Medicare Act by the Coronavirus Preparedness and Response Supplemental Appropriation Act back in January 2020. That addition meant that only a "qualified provider" that had furnished covered Medicare services to a patient in the last three years could furnish Medicare-covered telehealth to a patient. The CARES Act removes this restriction.
• Enhancing Medicare Telehealth Services for Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) during an Emergency Period - Prior to the CARES Act, FQHCs and RHCs were not authorized distant site providers and could not receive Medicare payment for telehealth services. Now, FQHCs and RHCs may provide telehealth services to Medicare beneficiaries during an emergency period, subject to specified statutory limitations and payment methodologies.
• Temporary Waiver of Requirement for Face-to-Face Visits Between Home Dialysis Patients and Physicians - Medicare previously covered monthly medical evaluations furnished by practitioners via telehealth to beneficiaries receiving end-stage renal disease services in their homes, but only if the practitioner and beneficiary had previously engaged in a "face-to-face clinical assessment, without the use of telehealth." The CARES Act grants the DHHS Secretary authority to waive the precondition of a "face-to-face" assessment during an Emergency Period.
• Use of Telehealth to Conduct Face-to-Face Encounter Prior to Recertification of Eligibility for Hospice Care During Emergency Period - Prior to the CARES Act, the Medicare Act required a physician or nurse practitioner to have "a face-to-face encounter" with Medicare beneficiaries when recertifiying them for hospice care. The CARES Act grants the DHHS Secretary authority to permit practitioners to furnish the required "face-to-face encounter" with the beneficiary via telehealth.
• Encouraging Use of Telecommunications Systems for Home Health Services Furnished During Emergency Period - The CARES Act also requires the DHHS Secretary to consider ways to encourage the use of telehealth modalities in the delivery of home health services furnished during an emergency period, including for remote patient monitoring and other communications or monitoring services, consistent with the beneficiary's Home Health Plan of Care.

Other CARES Act Telehealth Programs

In addition to the FCC, RUS, and Medicare programs, the CARES Act authorizes funding for other telehealth connectivity programs, described in the chart below. Our colleagues in the DWT Healthcare practice can provide operational details on many of these programs.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.

FOOTNOTE

1 CARES Act, Pub. L. No 116-136, 134 Stat. 281 (2020).