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Telehealth Expansion Post-PHE: CMS Proposes Making Certain Changes Permanent

In its calendar year 2021 Medicare Physician Fee Schedule (“MPFS”) proposed rule, released August 3, 2020, the Centers for Medicare and Medicaid Services (“CMS”) has proposed to make permanent certain telehealth changes that have been implemented in response to the COVID-19 public health emergency (“PHE”). The proposals include:

  1. Permanent Telehealth Services Additions – Permanently adding certain services to the list of Medicare-reimbursable telehealth services (“Medicare telehealth list”) which were added on a temporary basis during the PHE.
  2. Temporary Telehealth Services Additions – Including on the Medicare telehealth list, on a new “Category 3” basis, certain other services that were added during the PHE which will remain on the list through the calendar year in which the PHE ends.
  3. Decrease Frequency Limitations for Subsequent SNF Visits – Revising the frequency limitation for subsequent skilled nursing facility visits furnished via Medicare telehealth from one visit every 30 days to one visit every 3 days.
  4. Direct Supervision Via Audio/Video Technology – Allowing direct supervision to be provided using real-time, interactive audio and video technology (excluding telephone that does not also include video) through December 31, 2021.

In addition to the proposals above, CMS issued some clarifications of existing policy, including:

  1. Same Site Is Not Telehealth – Reiterating that telehealth rules do not apply when the beneficiary and the practitioner are in the same location, even if audio/video technology assists in furnishing a service.
  2. Practitioners Eligible to Provide Certain Services – Clarifying that licensed clinical social workers, clinical psychologists, physical therapists, occupational therapists, and speech-language pathologists can furnish the brief online assessment and management services as well as virtual check-ins and remote evaluation services.

Finally, CMS identified several areas in particular where it is seeking comment. These areas are not included as a proposal or clarification, but the request for comment signals that they are under consideration by CMS. These include:

  1. PHE Telehealth Services Not Added Under MPFS Proposed Rule – Comment on services added to the Medicare telehealth list during the PHE that CMS is not proposing to add to the Medicare telehealth list permanently or temporarily on a Category 3 basis.
  2. Removal of Frequency Limitations for Subsequent SNF Visits – Comment on whether it would enhance patient access to care to remove frequency limitations for subsequent nursing facility visits furnished via Medicare telehealth altogether, and how best to ensure that patients would continue to receive necessary in-person care.
  3. Expanded Virtual Check-In – Whether CMS should develop coding and payment for a service similar to the virtual check-in but for a longer unit of time and subsequently with a higher value. CMS also seeks input on the duration of the services, the resources in both work and practice expense associated with furnishing this service, and whether this should be a provisional or permanent policy.
  4. Concerns Around Direct Supervision Via Audio/Video Technology – With regard to the revisions of direct supervision, CMS is seeking comment on patient safety/clinical appropriateness, as well as on potential concerns around induced utilization and fraud, waste, and abuse and how those concerns might be addressed.

Notably, a number of the other flexibilities that have been implemented during the PHE are not covered by the MPFS proposed rule, as they would require Congressional action to extend them, such as payment for care to beneficiaries located at their homes and an expansion of the list of practitioners eligible to provide services via telehealth. Further, certain flexibilities seem unlikely to be made permanent, such as non-enforcement of certain HIPAA requirements around provision of telehealth services. Nonetheless, the recent MPFS proposed rule is a significant step toward post-PHE telehealth expansion, and providers should continue to monitor the changing regulatory landscape.

In a Stakeholder Engagement call on August 4, 2020, Demetrios Kouzoukas (Principal Deputy Administrator of CMS and Director of the Center for Medicare) shared remarks and answered questions related to the MPFS proposed rule. He emphasized that it remains a priority of CMS to put patients “in the driver’s seat,” remove barriers to care access, and afford more choice and flexibility. Through this lens, he acknowledged that the “work is never really done,” and thus signaled that the evolution of telehealth policy is likely to be ongoing. He reiterated that CMS is receptive to public input, including with regard to adding other services to the Medicare telehealth list beyond those that have been addressed during the PHE, in addition to the topics above. Public comments on the proposed rule are due by October 5, 2020, and may be submitted electronically to http://www.regulations.gov or by mail (instructions may be found in the MPFS proposed rule).