Telehealth and Remote Care After the Public Health Emergency
This Featured Article is contributed by AHLA's Health Information and Technology Practice Group.
- April 07, 2023
- Sean Sullivan , Alston & Bird LLP
- Keevana Glossin , Alston & Bird LLP
- Carolyn Bergkvist , Alston & Bird LLP
Under Section 319 of the Public Health Service (PHS) Act, the COVID-19 public health emergency (PHE) was first declared by the Secretary of the Department of Health and Human Services (HHS) on January 31, 2020, and has been continuously renewed since then. However, the Biden administration recently announced that it intends to allow the PHE to expire on May 11, 2023. As the PHE comes to an end, providers furnishing telehealth and related services should take inventory of any flexibilities that are currently in use, and develop a plan to bring operations into full compliance with the post-PHE rules. This article does not address every relevant post-PHE telehealth flexibility, but summarizes key changes to existing federal telehealth and remote care flexibilities.[1]
Medicare Telehealth Coverage
Originating Site Requirements: Telehealth services can be rendered regardless of the patient’s or provider’s geographic location (i.e., telehealth is not limited to rural areas and the patient can be at home) through December 31, 2024, pursuant to the Consolidated Appropriations Act of 2023 (CAA).[2] Absent additional legislative action, after December 31, 2024, Medicare-covered telehealth services cannot be provided in a patient’s home or other non-traditional originating sites (with certain exceptions for treatment of substance abuse, mental health, end stage renal disease, and acute stroke.
Expanded List of Eligible Practitioners: The list of health care professionals that can furnish distant-site telehealth services (including physical therapists, occupational therapists, and speech-language pathologists) remains expanded through December 31, 2024, under the CAA.[3]
Payment Parity in Non-facility Settings: The Centers for Medicare & Medicaid Services (CMS) extended payment parity for telehealth provided in non-facility distant site settings through the end of 2023 by allowing providers to use non-facility place of service codes when telehealth services are not provided to patients in hospitals, clinics, or other facility-based settings. Beginning January 1, 2024, distant-site practitioners will again be reimbursed based only on facility rates, resulting in reimbursement for some telehealth services reverting to lower pre-PHE levels.[4] CMS is expected to request comments on whether to extend this flexibility in future rulemaking.
Audio-Only Telehealth: Reimbursement for eligible audio-only, non-behavioral/mental health services will continue through December 31, 2024 under the CAA.[5]
Facility-Specific Telehealth Flexibilities
Hospital Services: Through the Acute Hospital Care at Home program, hospitals can continue to furnish inpatient services, including routine services, outside of the hospital through December 31, 2024.[6]
Hospice Care: Providers can use telehealth to recertify patients’ eligibility for hospice care through December 31, 2024.[7]
Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs): FQHCs and RHCs can serve as distant-site providers for telehealth services through December 31, 2024.[8]
Other Federal Agency Telehealth Flexibilities
HIPAA: The HHS Office for Civil Rights' (OCR) enforcement discretion for imposing penalties for violations of HIPAA related to the good-faith provision of telehealth services will terminate at the end of the PHE.[9] Following the termination of the PHE, all telehealth services will be required to be provided through HIPAA-compliant platforms, including the use of Business Associate Agreements with telehealth technology vendors. OCR has also issued additional guidance related to the use of audio only telehealth platforms.[10
OIG: The Office of Inspector General's (OIG) discretion to enforce certain provisions of the Anti-Kickback Statute (AKS) or the Beneficiary Inducement Statute (BIS) that prohibit routine reductions or waivers of costs owed by federal health care program beneficiaries for services provided via telehealth or other remote care technologies will terminate at the end of the PHE. Following the termination of the PHE, all telehealth services must be provided in accordance with the provisions of the AKS and BIS. Providers that routinely waive cost-sharing obligations, such as co-pays and deductibles, for telehealth and related services may be subject to administrative sanctions. [11]
Prescribing Controlled Substances: When the PHE expires, the provision of the Ryan Haight Act requiring an in-person medical evaluation prior to prescribing controlled medications will once again be enforced. On February 24, 2023, the Drug Enforcement Administration, Department of Justice, and HHS announced proposed rules creating new exceptions to the Ryan Haight Act. Comments were due March 31, 2023, and final rules may be published soon. The proposed rules include permitting the prescribing of non-narcotic Schedule III-V controlled medications via telemedicine and expanding patient access to certain types of treatments of opioid use disorders via telemedicine in limited circumstances.[12]
Other Regulatory Flexibilities
Remote Patient Monitoring (RPM) and Communication Technology-Based Services (CTBS): When the PHE ends, CMS will reimburse for RPM, Remote Therapeutic Monitoring, and other CTBS, such as virtual check-ins and e-visits provided to established patients only.[13] In other words, providers must conduct a new patient initiating visit, which can be conducted via telehealth, prior to rendering RPM services to new patients that have not been seen by the practitioner or another practitioner of the same specialty in the same group practice within the last three years.[14]
Transitional Care Management: The face-to-face visit required within 14 days of discharge (for CPT Code 99495) or within seven days of discharge (for CPT Code 99496) may be provided via telehealth after the PHE.[15]
Behavioral/Mental Health: An in-person visit within six months of an initial behavioral/mental telehealth service, and annually thereafter, will not be required through December 31, 2024, per CAA. For services furnished on or after January 1, 2025, absent additional legislation, an in-person visit will once again be required within six months of an initial behavioral/mental telehealth service, if the patient is seen in a non-rural location and/or in their home. In other words, the six month in-person visit requirement applies only when the telehealth visit does not meet the traditional Medicare telehealth requirements of a rural location and qualifying originating site.[16]
Virtual Direct Supervision: Direct supervision will continue to include audio/video real-time communications technology through the end of the year in which the PHE ends, or until December 31, 2023. Beginning January 1, 2024, direct supervision will again require the supervising professional to be physically present and immediately available to furnish assistance and direction in person, i.e., “incident to” services of a physician will once again require the supervising physician to be physically present in the same office suite.[17] We expect CMS to request comments on potentially extending the availability of virtual direct supervision beyond 2023 in future rulemaking.
About the Authors
Sean Sullivan is a partner at Alston & Bird, LLP, and focuses on health care regulatory matters, with a focus on digital health and healthcare technology issues. Keevana Glossin and Carolyn Bergkvist are associates at Alston & Bird, LLP and focus on health care regulatory and compliance matters.
[1] U.S. Department of Health & Human Services, Office of the Assistant Secretary for Preparedness and Response, Determination that a Public Health Emergency Exists (Jan. 31, 2020), available at https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx.
[2] H.R.2617, Consolidations Appropriations Act, 2023 (Dec. 20, 2022), available at https://www.congress.gov/bill/117th-congress/house-bill/2617/text;
[3] Id.
[4] 87 Fed. Reg. 69404, 69466, Medicare and Medicaid Programs; CY 2023 Payment Policies Under the Physician Fee Schedule and Other Changes to Part B Payment and Coverage Policies; Medicare Shared Savings Program Requirements; Implementing Requirements for Manufacturers of Certain Single-dose Container or Single-use Package Drugs To Provide Refunds With Respect to Discarded Amounts; and COVID-19 Interim Final Rules (Nov. 18, 2022), available at https://www.federalregister.gov/d/2022-23873/p-552.
[5] H.R.2617, supra note 2.
[6] Id.
[7] Id.
[8] Id.
[9] U.S. Department of Health and Human Services, HIPAA and Telehealth Guidance on HIPAA and Audio-only Telehealth (last updated Jun. 27, 2022), available at https://www.hhs.gov/hipaa/for-professionals/special-topics/telehealth/index.html.
[10] U.S. Department of Health and Human Services, Guidance on How the HIPAA Rules Permit Covered Health Care Providers and Health Plans to Use Remote Communication technologies for Audio-only Telehealth (last updated Jun. 13, 2022), available at https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/hipaa-audio-telehealth/index.html.
[11] U.S. Department of Health and Human Services, OIG Policy Statement Regarding Physicians and Other Practitioners That Reduce or Waive Amounts Owed by Federal Health Care Program Beneficiaries for Telehealth Services During the 2019 Novel Coronavirus (COVID-19) Outbreak (Mar 17, 2022), available at https://oig.hhs.gov/documents/special-advisory-bulletins/960/policy-telehealth-2020.pdf.
[12] 88 Fed. Reg. 12875, Notice of Proposed Rulemaking (Docket No. DEA-407) Telemedicine Prescribing of Controlled Substances when the Practitioner and the Patient have not had an In-Person Evaluation (Mar. 1, 2023), available at https://www.federalregister.gov/documents/2023/03/01/2023-04248/telemedicine-prescribing-of-controlled-substances-when-the-practitioner-and-the-patient-have-not-had.
[13] Centers for Medicare & Medicaid Services, Physicians and other Clinicians: CMS Flexibilities to Fight COVID-19 (Feb. 24, 2023) at 7, available at Physicians and Other Clinicians: CMS Flexibilities to Fight COVID-19.
[14] Medicare Claims Processing Manual (IOM Pub. 100-04, Chapter 12, § 30.6.7); American Medical Association, CPT 2023 Professional Edition, Evaluation and Management (E/M) Services Guidelines (CPT Codebook) at 7.
[15] Centers for Medicare & Medicaid Services, Medicare Learning Network Booklet on Transitional Care Management Services, (MLN908628, Aug. 2022), available at https://www.cms.gov/outreach-and-education/medicare-learning-network-mln/mlnproducts/downloads/transitional-care-management-services-fact-sheet-icn908628.pdf
[16] H.R.2617, supra note 2.
[17] 42 C.F.R. § 410.32(b)(3)(ii).