Saturday, July 2 2022

the Consolidated Appropriations Act, 2022 (the law), was passed by the United States House and Senate on March 9and and 10and, 2022, and signed into law by the President on March 15, 2022. The law extends certain telehealth flexibilities for Medicare patients for 151 days after the federal public health emergency (PHE) officially ends. Currently, the PHE will end in mid-April unless further extended.

Whether the PHE ends in April or at a later date, telehealth stakeholders will benefit from a brief 5-month slip for certain telehealth flexibilities instituted during the PHE. Legislation is essential because without Congressional action, CMS lacks the authority to allow most flexibilities to continue after the PHE is completed. Thus, the newly passed law will prevent a “telehealth cliff” in Medicare when the PHE expires, while allowing Congress to review other data from CMS and other sources regarding the use of telehealth to adopt permanent policy changes.

Here are the key takeaways on how the new legislation will affect the telehealth industry:

1. Medicare will pay for telehealth provided at home

Perhaps the most significant change in the law is the new definition of “originating site” which means “any site in the United States at which the person eligible for telehealth is located at the time the service is provided. .. including a person’s home”. Prior to the PHE, the law limited Medicare coverage to services provided to patients located in hospitals and other care facilities (ie, not in the patient’s home). The PHE flexibilities removed the originating site requirement for telehealth services, allowing providers to receive payment from Medicare for providing telehealth services to patients at home. The new law maintains this flexibility for 151 days after the end of the PHE.

2. Expands the list of telehealth practitioners

Prior to COVID-19, only physicians, nurse practitioners, physician assistants, and other specified providers could provide Medicare-covered telehealth services. Under the new law, the list of telehealth practitioners will continue to be expanded to include qualified occupational therapists, physiotherapists, speech therapists and audiologists for 151 days after PHE is completed.

3. Payment for audio-only telemedicine continues

Currently, Medicare covers audio telehealth only under temporary waivers that will expire at the end of the PHE. Under the new legislation, Medicare coverage for audio-only telehealth services remains in effect for 151 days after the PHE ends. Without this extension, once the PHE is completed, the emergency waiver authority ends and would therefore have audio-only telehealth.

4. Delay in in-person needs for mental health services via telehealth

In December 2020, Congress imposed new conditions on telemental health coverage under Medicare, creating an in-person examination requirement alongside coverage for telemental health services in the home of a patient who needed to enter into force at the end of the PHE. The law included a requirement for an in-person visit within six months of the first telehealth service and subsequent in-person visits every 12 months thereafter. Now, this in-person requirement for mental health services provided by telehealth is postponed until 152n/a day after PHE sunsets.

5. Extension for FQHC and RHC

Prior to the pandemic, Federally Licensed Health Centers (FQHCs) and Rural Health Clinics (RHCs) were limited to serving as the originating site (the patient’s location) for telehealth services. The proposed legislation would extend the flexibilities put in place by the CARES Act, allowing FQHCs and RHCs to serve as remote sites (the practitioner’s location) for an additional 151 days after the PHE expires.

6. Extension of first dollar coverage for telehealth under HDHP/HSA plans

During COVID-19 PHE, Congress issued temporary relief for Telehealth and High Deductible Health Plans (HDHPs) and Health Savings Accounts (HSA), enable coverage of telehealth services without plan members incurring costs even before plan member deductibles are satisfied (i.e. first dollar coverage). This relief originally expired on December 31, 2021. Now, under the new law, this flexibility is reinstated for the period from March 31, 2022 to December 31, 2022.

7. Study on COVID-19 Telehealth Changes in Medicare and Medicaid

The new law mandates the Medicare Payment Advisory Commission (MedPAC) to conduct a study on the expansion of telehealth services and analyze: (i) the use of telehealth; (ii) Medicare program expenditures for telehealth services; (iii) Medicare payment policies for telehealth services and other approaches to such payment policies; (iv) the implications of extending Medicare coverage of telehealth services on beneficiaries’ access to care and the quality of care; and (v) other areas determined by MedPAC.

In addition, beginning July 1, 2022, the Secretary of the Department of Health and Human Services must publicly release data on a quarterly basis regarding the use of telemedicine and no later than June 15, 2023, the Office of Inspector General will submit a report to Congress on program integrity risks associated with Medicare telehealth services with recommendations to prevent fraud, waste, and abuse.

And after?

While the flexibilities contained in the 2022 Consolidated Appropriations Act should help the industry avoid a “telehealth cliff”, like other flexibilities, they are temporary. Thus, telehealth actors must continue to wait for more permanent changes to open access and reimbursement for the provision of telehealth services to Medicare beneficiaries.

You want to know more ?

For more information on telemedicine, telehealth, virtual care, remote patient monitoring, digital health, and other healthcare innovations, including the team, publications, and rep experience , visit Foley’s Telemedicine and Digital Health Industry Team.

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