Telehealth for Medicare Beneficiaries Post-COVID. - Where Are We Now?

Before the COVID-19 public health emergency, approximately 14,000 Medicare beneficiaries completed a telehealth visit each week. By the end of April 2020, the number had grown to 1.7 million telehealth visits each week. The explosion of telehealth services has launched a new era of healthcare delivery. “The genie’s out of the bottle on this one,” said Seema Verma, the Administrator of the Centers for Medicare and Medicaid Services (“CMS”) in the Wall Street Journal. “I think it’s fair to say that the advent of telehealth has been just completely accelerated, that it’s taken this crisis to push us to a new frontier, but there’s absolutely no going back.”

CMS, in response to the public health emergency, removed red tape that has historically limited the adoption of telehealth. Through waiver authority under Section 1135(b) of the Social Security Act, CMS removed the telehealth geographic and originating site restrictions. CMS also waived the restrictions on the types of providers who may furnish telehealth services and the limitations on allowed modalities, among other things. These waivers allowed Medicare beneficiaries to receive telehealth services from their homes and in non-rural areas, both of which were significant barriers to telehealth adoption.

Proposed 2021 Medicare Physician Fee Schedule
On August 3, 2020, CMS released its annual proposed 2021 Medicare Physician Fee Schedule (the “Proposed Rule”), which updates payment policies and rates paid pursuant to the Physician Fee Schedule. The Proposed Rule proposes to extend parts of Medicare’s expanded telehealth coverage past the end of the public health emergency. Although this expansion is a welcome change, the most meaningful waivers, such as telehealth geographic and originating site restrictions, will still expire at the conclusion of the public health emergency without congressional action.

New Medicare Telehealth Services
In the Proposed Rule, CMS proposes to pay for additional telehealth services. These new services are similar to telehealth services already covered by Medicare and include:

• Visit Complexity Associated with Certain Office/Outpatient Evaluation and Management Services;
• Prolonged Services;
• Group Psychotherapy;
• Neurobehavioral Status Exam;
• Care Planning for Patients with Cognitive Impairment;
• Domiciliary, Rest Home, or Custodial Care Services; and
• Home Visits.

CMS also proposes adding a new category of telehealth services that will temporarily apply until the end of the calendar year following the end of the public health emergency in hopes of preventing abrupt elimination of patients’ virtual care services. These telehealth services include:

• Domiciliary, Rest Home, or Custodial Care Services, Established Patients;
• Home Visits, Established Patients;
• Emergency Department Visits;
• Nursing Facilities Discharge Day Management; and
• Psychological and Neuropsychological Testing.

CMS is also seeking comment on permanently or temporarily extending other telehealth services, including:

• Initial Nursing Facility Visits, All Levels;
• Psychological and Neuropsychological Testing;
• Therapy Services, Physical and Occupational Therapy, All Levels;
• Initial Hospital Care and Hospital Discharge Day Management;
• Inpatient Neonatal and Pediatric Critical Care, Initial and Subsequent;
• Initial and Continuing Neonatal Intensive Care Services;
• Critical Care Services;
• End-Stage Renal Disease Monthly Capitation Payment;
• Radiation Treatment Management Services;
• Emergency Department Visits, Levels 4-5;
• Domiciliary, Rest Home, or Custodial Care Services, New;
• Home Visits, New Patient, All Levels; and
• Initial and Subsequent Observation and Observation Discharge Day Management.

Summary of Other Proposed Policy Changes
In addition to expanding the types and reimbursement of telehealth services, CMS also proposed several new policy changes that will increase the frequency and usefulness of telehealth services.

• Telehealth in the Skilled Nursing Facility Setting. Long-term care facility regulations require that residents of skilled nursing facilities receive an initial visit from a physician, and periodic subsequent visits by a physician or non-physician practitioner. During the public health emergency, CMS waived the requirement that these visits be performed in person and allowed the visits to occur virtually. CMS is seeking comment on whether it would be appropriate to maintain this flexibility permanently after the public health emergency ends. CMS has also prohibited the use of telehealth for subsequent nursing facility visits more than once every 30 days. Now, CMS is proposing to remove this limitation and allow a subsequent nursing facility telehealth visit once every three days instead of 30 days.
• Incident to Billing. In some instances, when Medicare does not allow a non-physician practitioner to bill Medicare directly for his or her services, the services can be billed by the supervising physician under Medicare’s “incident to” rules when the practitioner is under the “general,” “direct,” or “personal” supervision of a physician. The existing definition of direct supervision requires “on-site” presence of the billing physician where the service is provided. CMS has proposed amending the definition of direct supervision to allow the billing physician to provide direct supervision through a “virtual presence,” which would significantly expand incident to billing. CMS is proposing this policy apply until the end of the calendar year in which the public health emergency ends or December 31, 2021, whichever is later. CMS will consider comments on whether virtual direct supervision is appropriate on a permanent basis.

Submitting Comments
You can read a copy of the Proposed Rule here. Interested parties have until October 5, 2020 to submit comments on the Proposed Rule.

Recent Congressional Action
Although the Proposed Rule proposes expanding the Medicare telehealth rules, most telehealth waivers will still expire with the public health emergency. At the end of the public health emergency, without further action, Medicare will no longer pay for telehealth services while beneficiaries are in their homes or in non-rural areas and audio-only visits will no longer be reimbursed, all of which are particularly important for elderly and home-bound patients and for patients without smart phones, computers, or reliable internet access. Since these payment restrictions are in Section 1834(m) of the Social Security Act, congressional action is required to change these payment restrictions. In the past few months, numerous bills have been introduced that seek to expand Section 1834(m), including the Equal Access to Care Act, KEEP Telehealth Options Act, Evaluating Disparities and Outcomes of Telehealth During the COVID-19 Emergency Act of 2020, Advancing Telehealth Beyond COVID-19 Act, COVID-19 Emergency Telehealth Impact Reporting Act of 2020, and Protecting Access to Post-COVID-19 Telehealth Act.

The expansion of telehealth also has wide support evidenced by a letter from 340 health care organizations, including Google and many other notable companies, asking the Senate and House of Representative leaders to make telehealth more accessible, as well as a letter from 30 Senators to Congressional leadership advocating for permanent increased access to telehealth.