Implications of the End of the Public Health Emergency for the National Telehealth Landscape
Since the beginning of the COVID-19 pandemic and the corresponding Public Health Emergency (PHE) in January of 2020, the use of telehealth for both physical and behavioral healthcare has increased exponentially. To make it easier for more providers to offer a greater number of services via telehealth, the federal government implemented the temporary flexibilities discussed in this article and added newly reimbursable telehealth services early in the pandemic. Similarly, every state relaxed licensure requirements to allow providers to practice telehealth across state lines in some capacity. As the PHE comes to a close, many of the temporary changes implemented during the pandemic will expire, casting uncertainty onto the future of telehealth.
Outlined below are the key federal telehealth policy changes that will take place over the next twenty-two months, beginning with the end of the PHE in May 2023.
May 11, 2023:
- Enforcement discretion for telehealth communications: At the beginning of the COVID-19 pandemic, the Office of Civil Rights (OCR) released guidance indicating that it would not penalize health care providers for HIPAA non-compliance in the use of non-public facing tools, including Apple FaceTime, Facebook Messenger, and Zoom, to provide telehealth services to patients. Under normal circumstances, the use of these non-encrypted apps to provide telehealth services could violate the HIPAA privacy and security rules. This flexibility will not extend past the end of the PHE unless further action is taken.
- Payment parity: Beginning March 6, 2020, Medicare began reimbursing for telehealth services at the same rate as in-person visits. This payment parity under Medicare will cease at the end of the PHE, which may disincentivize providers from offering telehealth services to patients and increase barriers to care for individuals living in more rural parts of the country.
- Administrative sanctions for reducing/waiving cost–sharing obligations: Throughout the COVID-19 PHE, the Office of Inspector General (OIG) has abstained from issuing administrative sanctions against providers for reducing or waiving patient cost-sharing (e.g., coinsurance and deductibles) for telehealth services provided during the PHE. Outside of the PHE, such actions could trigger the Federal anti-kickback statute and civil monetary penalty laws. At the end of the PHE, OIG will resume issuing administrative sanctions.
- Prescribing controlled substances: During the COVID-19 PHE, the Drug Enforcement Agency (DEA) and the Substance Abuse and Mental Health Services Administration (SAMHSA) permitted providers to prescribe controlled substances via telehealth, including via telephone, without first conducting an in-person examination as is required under the Controlled Substances Act. This flexibility has proven particularly significant for people with opioid use disorder (OUD) who are being treated with buprenorphine; throughout the pandemic, providers have been able to begin buprenorphine treatment using telehealth in the absence of an in-person evaluation. Unless further action is taken, this flexibility will expire at the end of the PHE.
October 9, 2023:
- Telephone evaluation and management services: CMS has permitted reimbursement for telephone (audio-only) evaluation and management (E/M) services and behavioral health counseling and education services during the PHE. The agency has chosen not to extend audio-only E/M services coverage past the end of the PHE, as it believes audio-only modalities do not meet the requirements for telehealth services set forth under the Social Security Act. Audio-only E/M services will be assigned a “bundled” status starting 151 days after the end of the PHE, meaning that these services will continue to be covered under Medicare but not separately reimbursable. Providers may therefore have less incentive to provide audio-only E/M services in the future.
- Telehealth services delivered in-home: Section 123 of the 2021 Consolidated Appropriations Act amended the Social Security Act to require providers to perform an in-person examination of a patient six months prior to the provision of in-home diagnostic, evaluation, or treatment telehealth services for mental health disorders and conduct annual in-person exams after the telehealth service is rendered. Rather than going into effect at the end of the PHE, Medicare will reimburse for these services only if the above-mentioned conditions are met beginning 151 days after the PHE ends.
- Eligible Providers: During the PHE, CMS relaxed restrictions around the types of providers eligible to provide services via telehealth through a blanket waiver – all providers eligible to bill Medicare, including physical therapists, occupational therapists, and speech language pathologists, were able to provide their services via telehealth. This waiver will expire 151 days after the end of the PHE.
December 31, 2023:
- Virtual direct supervision: In its 2021 Medicare Physician Fee Schedule, CMS amended the definition of “direct supervision” to include supervising physicians who are able to immediately communicate using interactive audio-video technology. CMS chose to not make the amended definition a permanent addition in its 2023 Medicare Physician Fee Schedule, and virtual direct supervision will therefore phase out at the end of 2023.
- Temporary telehealth services: Early in the PHE, CMS added a series of Medicare-covered telehealth services that would remain reimbursable through the end of the calendar year in which the PHE expires, including Home Visits, Physical and Occupational Therapy services, and Critical Care Services. These telehealth services, deemed “Category 3” services, show potential clinical value but have not yet been shown to be clinically effective. In its 2023 Medicare Physician Fee Schedule Rule, CMS encourages stakeholders wishing to see these temporary telehealth services made permanently reimbursable under Medicare to submit evidence of their clinical value.
December 31, 2024:
Pursuant to the Consolidated Appropriations Act of 2023, certain PHE telehealth flexibilities will sunset at the end of 2024:
- Originating site flexibilities: Under the Social Security Act, the “originating site” is the location of the individual receiving telehealth services. Pre-pandemic, originating sites were restricted to rural health professional shortage areas, Non-Metropolitan Statistical Areas, and Federal telemedicine demonstration project entities, but these restrictions were relaxed during the PHE.
- Per the 2023 Medicare Physician Fee Schedule, Medicare patients can continue to receive in-home telehealth services provided by eligible providers.
- Originating site geographic restrictions will continue to be suspended for patients receiving non-behavioral telehealth services.
- Audio-only services: Providers can continue to use audio-only equipment to provide certain non-behavioral telehealth services.
- Distant site flexibilities: Under the Social Security Act, the “distant site” is the location of the practitioner who provides the telehealth service. The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) permitted Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) to provide telehealth services to Medicare beneficiaries as distant site providers.
- Under the CAA of 2023, FQHCs and RHCs may continue to provide non-behavioral telehealth services as a distant site provider to Medicare beneficiaries through December 31, 2024.
As the temporary changes are rolled back, it remains to be seen how providers and patients will react and how states will adapt. In the coming months, PCG will monitor new federal and state rules and legislation that aim to mitigate the effects of these changes. Stay tuned for additional content in this area in future HPN articles.