On January 30, 2023, President Biden announced that the Covid-19 Public Health Emergency (PHE) would end on May 11, 2023. Since the PHE was declared on January 31, 2020, federal and state regulators, including the Centers for Medicare and Medicaid Services (CMS), issued several waivers to relax certain telehealth requirements and promote access to virtual care. Despite the looming end of the PHE, Congress has, with the passage of the Consolidated Appropriations Act 2023, extended most - but not all - of the telehealth waivers until December 31, 2024. This article explores key takeaways on how the end of the PHE will affect providers serving Medicare patients.
1. Medicare beneficiaries in any geographic area can receive telehealth services rather than only those living in rural areas.
Waivers permitting reimbursement of telehealth services provided to patients in non-rural areas or in their homes will now be extended through December 31, 2024. Prior to the PHE, Medicare only reimbursed providers for telehealth services to patients physically located in originating sites in counties outside of a metropolitan statistical area or in Health Professional Shortage Areas in rural census tracts. There were exceptions permitting tele-stroke services in non-rural areas. This reimbursement restriction was waived during the PHE and is now extended until December 31, 2024.
2. Beneficiaries can remain in their homes for telehealth visits reimbursed by Medicare, rather than traveling to a health care facility.
CMS waived requirements that patients receiving telehealth services must be located at designated locations (“originating sites”) such as a hospital, physician office, or federally qualified health centers (FQHC). The waiver permitted patients to receive telehealth services and Medicare to reimburse such services if patients were at home. Before the PHE, the “originating site” only included the patient’s home in limited circumstances. With the passage of the Consolidated Appropriations Act (CAA), flexibilities for originating site geographic restrictions are extended through December 31, 2024, for non-behavioral/mental telehealth services. For behavioral/mental telehealth services, originating site geographic restrictions are permanently waived.
3. FQHC and RHC can continue to be distant site providers for telehealth services.
Federally qualified health centers and rural health clinics can provide telehealth services to Medicare beneficiaries (i.e., can be distant site providers) through December 31, 2024, rather than being limited to being an originating site provider for telehealth (i.e., where the beneficiary is located).
4. Some telehealth visits can be provided as audio-only visits rather than requiring a two-way video visit.
The use of audio-only platforms for certain evaluation and management (E/M) services and behavioral health counseling and educational services is permitted during the PHE. Prior to the PHE, CMS generally required these services to be furnished with audio-video technology. The CAA extends this flexibility through December 31, 2024.
5. Flexibility on practitioners who may bill telehealth services continuing through December 2024.
The types of practitioners who may bill for Medicare telehealth services from a distant site are expanded during the PHE to include qualified occupational therapists, physical therapists, speech-language pathologists, and audiologists. Prior to the PHE, “practitioner” only included physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, certified nurse-midwives, clinical social workers, clinical psychologists, and registered dietitians or nutrition professionals. The CAA extends the expanded list of authorized telehealth providers through December 31, 2024. However, the state law restrictions on authorized providers should also be considered to ensure such a service is within the scope of the practitioner’s licensed authority.
6. An expanded list of Medicare-covered services can be provided via telehealth.
Waivers permitting many services to be provided by telehealth during the PHE have been extended through December 31, 2024. CMS added numerous categories of services to the list of reimbursable CPT codes, all of which are reimbursable through December 2024. The complete list may be found here.
Additionally, frequency limitations on furnishing services reportable by CPT codes 99231-99233, 99307-99310, and G0508-G0509 are removed during the PHE. After the end of the PHE, frequency limitations will revert to pre-PHE standards. Subsequent inpatient visits may only be furnished via Medicare telehealth once every three days (CPT codes 99231-99233), skilled nursing facility visits may only be furnished via Medicare telehealth once every fourteen days (CPT codes 99307-99310), and critical care consults may only be furnished via Medicare telehealth once per day (CPT codes G0508-G0509).
7. Virtual “Direct Supervision” flexibilities to be discontinued.
Under Medicare, certain services must be furnished under the “direct supervision” of a physician or practitioner. For Medicare purposes, direct supervision requires the supervising professional to be physically present in the same office suite as the supervisee and “immediately available” to furnish assistance and direction throughout the performance of the procedure. Among the PHE waivers, CMS temporarily changed the direct supervision rules to allow the supervising professional to be remote and use real-time, interactive audio-video technology. In addition, virtual presence could satisfy the direct supervision requirements for all “incident to” services billed. However, these flexibilities expire at the end of this year, December 31, 2023.
8. No waivers issued by Georgia remain.
Subject to some exceptions, physicians generally may not prescribe a controlled substance to patients based solely on a telehealth consultation. Any state waivers to these regulations terminated in 2021. Physicians may prescribe other drugs that are not controlled substances to patients through telehealth if the physician and patient have an existing physician-patient relationship.
9. Other considerations.
Provider Enrollment. Practitioners will be required to report their home address on their Medicare enrollment. During the PHE, CMS allowed practitioners to render telehealth services from their home without reporting their home address on their Medicare enrollment while continuing to bill from their currently enrolled location. When the PHE ends, the waiver will continue through December 31, 2023.
Payment Rates. During the PHE, CMS initiated higher reimbursement for telehealth services at non-facilities, such as a patient's home. These higher reimbursement rates are scheduled to end this year. After that, rates for at home visits could return to lower pre-pandemic levels.
As the termination of the PHE commences, providers should closely review the evolving scope of telehealth coverage to ensure compliance with applicable CMS rules and state laws. MMM healthcare attorneys will continue to monitor regulatory and legislative changes on how the end of the PHE will impact providers and the healthcare industry as a whole.
Consolidated Appropriations Act, 2023, H.R.2617, 117th Cong. (2022), https://www.govinfo.gov/app/details/BILLS-117hr2617enr/.
Centers for Medicare & Medicaid Services, COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers, https://www.cms.gov/files/document/covid-19-emergency-declaration-waivers.pdf (last accessed Mar. 15, 2023).
Centers for Medicare & Medicaid Services, List of Telehealth Services, https://www.cms.gov/medicare/medicare-general-information/telehealth/telehealth-codes (last accessed Mar. 15, 2023).