The end of 2021 brings positive indications of the continued acceptance of telehealth as an important clinical care approach after a public health emergency (“PHE”). The Centers for Medicare and Medicaid Services (“CMS”), like other payers, has revised its approach to telehealth services in response to COVID-19 PHE. In the CY 2022 Physician Fee Schedule Final Rule (“Final Rule”) just published in November, CMS acknowledged the growing popularity of telehealth during PHE and responded by announcing two further regulatory changes to promote broader use of telehealth: (1) an extended timeline for Medicare reimbursement for current telehealth services, and (2) relaxed criteria for diagnosing, assessing, and treating mental health disorders via telehealth. Such changes signal CMS’s appreciation for telehealth and an openness to continue reviewing its reimbursement criteria. Limits a patient’s financial liability for OON emergency services, most non-emergency services provided by OON providers at In-Network (“INN”) hospitals, and OON air ambulance services to the amount the patient would be liable if these services had been provided by INN providers (i.e. INN cost sharing amounts); and
Extended repayment period
First, CMS has extended the reimbursement deadline for all telehealth services temporarily authorized for Medicare reimbursement during PHE on a Category 3 basis (“Telehealth Services”). In the final rule, CMS announced that providers could continue to be reimbursed for these services until the end of calendar year 2023.ii This extended timeline will allow providers to continue providing telehealth services, while developing clinical evidence to support their permanent addition to the CMS Telehealth List.
Relaxed criteria for mental health disorders
Second, CMS has significantly relaxed its reimbursement criteria for telehealth services provided “for the purpose of diagnosis, assessment or treatment of a mental health disorder.” Historically, Medicare paid for these services, like all those on the CMS telehealth list, only if: (1) a qualified practitioner provided the services; (2) the practitioner was at a qualified remote site (eg, certain types of facilities); (3) the patient presented to an eligible source site (eg, a rural area in a provider’s office or facility); and (4) the parties have used technology that enables real-time two-way interactive communications in accordance with federal and state privacy laws.iii
The final rule, however, allows Medicare to pay for telehealth services provided “for the purpose of diagnosing, evaluating, or treating a mental health disorder” on an ongoing basis (even after PHE ends) under the criteria. following relaxations:iv
First, a patient’s home can now serve as an eligible originating site for telehealth encounters for the diagnosis, assessment, or treatment of a mental health disorder, provided these services are preceded and followed by an in-person visit. Specifically, the practitioner providing the telehealth services must: (i) have also provided an item or service in person to the patient (i.e. without using telehealth) within 6 months prior to the first time the provider provided telehealth services to the patient; and (ii) provide in-person services to that patient every 12 months following telehealth service.vi However, the “same practitioner” may include either (i) the practitioner providing the telehealth service; or (ii) a practitioner of the same specialty and group as that practitioner.viii Therefore, CMS allows telehealth practitioners to rely on others in their group to provide in-person services to meet this requirement.
Second, for the assessment and treatment of mental health disorders, CMS has waived geographic restrictions for patient homes.viii Now, a patient’s home can serve as the originating site for these services, even if it is not in an eligible rural postcode.
Third, for the assessment and treatment of mental health disorders, CMS continuously allows audio visits only when: (1) the patient’s home serves as the originating site for the encounter, and (2) the telehealth provider has audio-visual technical capabilities for the encounter, but the patient is not capable or does not consent to a video encounter.ix For services other than behavioral health counseling services, the CMS still requires providers to use two-way audio-visual communication technology.X
Collectively, these changes have the potential to significantly expand access to behavioral health care for Medicare beneficiaries and provide an avenue for providers to develop clinical arguments for other services to be reimbursed as telehealth services. Finally, the final rule suggests greater acceptance by CMS of the importance of telehealth in promoting accessible care, which may signal to providers that the telehealth revolution is here to stay.
I86 Fed. Reg. 64996 (19 November 2021) available at https://www.govinfo.gov/content/pkg/FR-2021-11-19/pdf/2021-23972.pdf.
ii86 Fed. Reg. 65055 (19 November 2021).
iiiSee 42 CFR §410.78(b).
ivTelehealth services must meet the terms of 42 CFR 414.65 and 410.78, as well as state requirements, to legally claim Medicare reimbursement.
vA patient’s “home” may include their residence, a temporary residence (eg, hotel, shelter), or a nearby place where the patient goes for privacy or other reasons.
vi86 Fed. Reg. 65058 (19 November 2021).
viii86 Fed. Reg. 65058 (19 November 2021).
viii86 Fed. Reg. 65057 (November 19, 2021) (CMS noted that a patient’s home need not be in a qualifying location provided by 41 CFR §410.78(b)(4) (i.e. a rural area of shortage of health professionals)).
ix86 Fed. Reg. 65057 (19 November 2021).
XCMS justified limiting telephone consultations only to mental health services involving primarily verbal conversation between patient and provider noting that patient visualization is less necessary for these services, but important for others.
© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XII, Number 64