Medicare Proposes New Flexibilities and Coverage for Telehealth Services

By Rebecca Burke and Megan La Suer

The 2022 Medicare Proposed Physician Fee Schedule (PFS) Rule (Proposed Rule), released on July 13, 2021, includes several proposals relating to coverage and payment for Medicare telehealth services and extension of temporary coverage for certain telehealth services.  The Centers for Medicare and Medicaid Services (CMS) is accepting comments on the proposal through September 13, 2021.

CMS Declines to Add New Telehealth Services to Categories 1 & 2 of the Medicare Telehealth Services List

The regulatory process for adding or deleting services from the Medicare telehealth services list was established under the 2003 PFS Final Rule.  The public submits requests for adding services and CMS then assigns the service to a category.  A requested service is added to Category 1 if it is similar to professional consultations, office visits, and office psychiatry services that are currently on the Medicare telehealth services list.  A requested service is added under Category 2 if there is evidence of clinical benefit if provided using telehealth.

CMS received several requests to permanently add a wide variety of services to the Medicare telehealth services list effective for CY 2022.  However, CMS found that none of the requests met the Category 1 or Category 2 criteria for permanent addition to the Medicare telehealth services list.

Denied services include several physical, occupational, and speech therapy services and tests which CMS declined because those professionals are not among the providers whose services Medicare covers when provided via telehealth.

Retaining Services Under Category 3 of the Medicare Telehealth Services List

Under the 2021 PFS Final Rule, CMS created a new Category 3 for telehealth services that would allow coverage and payment for such services through the end of calendar year in which the COVID-19 public health emergency (PHE) expires.  Category 3 services represent those services that CMS believed were likely to have clinical benefit when furnished via telehealth, but for which there was not sufficient evidence available to consider the services as permanent under Category 1 or 2.

In the Proposed Rule, CMS addresses concerns that practitioners may not have time to gather and compile evidence to qualify Category 3 services as Category 1 or 2 at the end of the PHE.  To alleviate these concerns, CMS is proposing to revise and extend the timeframe for inclusion of these services on a temporary, Category 3 basis until the end of CY 2023.  CMS states that it believes the temporary inclusion of these services on the telehealth list will allow additional time for stakeholders to collect, analyze and submit data on those services to support their consideration for permanent addition to the list on a Category 1 or Category 2 basis.

Consolidated Appropriations Act (CAA) Mental Health Telehealth Services

The CAA, passed by Congress in January of 2021, amended the Social Security Act to allow for additional mental health services to be furnished via telehealth. Specifically, it broadened the scope of services to permit coverage for telehealth services furnished for the purpose of diagnosis, evaluation or treatment of a mental health disorder without regard to the geographic location and to allow the patient’s home as a permissible originating site.  This expanded coverage takes effect on or after the end of the PHE for COVID-19 and will have the effect of making the temporary telehealth waiver permanent with respect to mental health services.

In addition,  as directed by the CAA, CMS is proposing to require providers to conduct an in-person, non-telehealth service within six months prior to providing an initial telehealth mental health service, and at least once every six months thereafter.  This proposed requirement would only apply to the mental health telehealth services made possible by the CAA.  CMS is seeking comment on whether the required in-person visit could also be furnished by another physician or practitioner of the same specialty and same subspecialty within the same group as the physician or practitioner who furnishes the telehealth service.

Audio-Only Mental Health Telehealth Services

CMS is proposing to allow audio-only telehealth services for diagnosis, evaluation, and treatment of mental health when the patient is:

• In their home at the time of the service;
• Is an established patient;
• There has been an in-person visit within the last six months; and
• The health care provider is capable of providing the service with audio and visual communication technology but the patient either is not able to or does not consent to use of audio-visual communications.

Currently, audio-only telehealth visits are permitted but would end with the PHE. This proposed change would ensure that audio-only telehealth services can continue after the PHE.

Mental Health Services Provided by RHCs and FQHCs

CMS is proposing to allow rural health clinics and federally qualified health centers (FQHC) to provide mental health services via telehealth on a permanent basis beyond the PHE.  The Proposed Rule does not address whether this new rule would apply to FQHC look-alikes.

Remote Supervision

CMS is considering whether it should extend, on a permanent basis, the ability of providers to supervise services remotely using audio-visual technology.  CMS is allowing this during the PHE, but only until the end of 2021. The agency is soliciting comments on whether remote supervision should be allowed going forward and if so, whether it should be limited to certain services.

Remote Therapeutic Monitoring

CMS is proposing to cover and pay for five new CPT codes that describe remote therapeutic monitoring (RTM). The new codes are modeled after the remote physiological monitoring codes with some exceptions. There are two RTM technical component codes similar to the RPM CPT Code 99454: one for provision of a device to monitor the respiratory system (989X2) and the other for the musculo-skeletal system (989X3).  One difference between the RPM and RTM codes is that the RTM codes appear to be reportable when the data is reported by the patient rather than being transmitted automatically by the device.  There was an expectation, when these codes were established by the AMA CPT Editorial Panel, that the musculo-skeletal system monitoring codes could be billed by physical therapists. However, in the Proposed Rule, CMS takes the position that because the codes are modeled after the RPM codes, which are in the evaluation and management section of the CPT Book, the RTM service cannot be billed by physical therapists. CMS is soliciting comments on how to resolve this problem, given the way the codes are structured.

Proposed payment for the new RTM codes is as follows:

The text of the 2022 PFS Proposed Rule can be found at https://www.govinfo.gov/content/pkg/FR-2021-07-23/pdf/2021-14973.pdf.  The CMS Fact Sheet on the Proposed Rule can be found at https://www.cms.gov/newsroom/fact-sheets/calendar-year-cy-2022-medicare-physician-fee-schedule-proposed-rule.

For questions about this article, please contact Rebecca Burke (rebecca.burke@powerslaw.com) or Megan La Suer (megan.lasuer@powerslaw.com)