With solely two weeks remaining within the yr, Congress is contemplating a authorities funding deal (the “Additional Persevering with Appropriations and Catastrophe Reduction Supplemental Appropriations Act, 2025” or the “Invoice”) that features a welcome vacation present for well being care suppliers and sufferers – an expansive well being care package deal that will lengthen sure telehealth flexibilities promulgated through the COVID-19 public well being emergency (“PHE”) for an extra two years. The prolonged telehealth flexibilities are at the moment set to run out on December 31, 2024. This extension would typically enable suppliers to proceed to serve Medicare sufferers by way of telehealth per the present practices.
Though Congressional Democrats and Republicans initially appeared aligned in help of the Invoice, there was some more moderen Republican reticence associated primarily to its prices. We’re carefully monitoring this evolving story.
Flexibilities That Would Be Prolonged by the Invoice
The Facilities for Medicare & Medicaid Companies (“CMS”) issued numerous telehealth waivers through the PHE, a few of which had been prolonged by way of December 31, 2024 by the 2023 Consolidated Appropriations Act (“CAA”).[i] The Invoice would lengthen these flexibilities by way of December 31, 2026. The flexibilities that will be prolonged by the Invoice are:
- Definition of “Originating Website”: The Invoice would lengthen the definition of “originating web site” to imply any web site within the U.S., together with the house of a person. An “originating web site” is the placement at which the telehealth eligible particular person is positioned on the time the service is furnished by way of a telecommunications system.
- Definition of “Practitioner”: The Invoice would lengthen the definition of “practitioner” to additionally embody a certified occupational therapist, certified bodily therapist, a certified speech-language pathologist, and a certified audiologist. Previous to the PHE, a “practitioner” was restricted to a doctor assistant, nurse practitioner, medical nurse specialist, licensed registered nurse anesthetist, licensed nurse-midwife, medical social employee, medical psychologist, and registered dietitian or diet skilled.
- RHC and FQHC Telehealth Companies: The Invoice would lengthen the authorization for Rural Well being Clinics (“RHCs”) and Federally Certified Well being Facilities (“FQHCs”) to offer and reimburse for telehealth providers.
- In-Particular person Go to Requirement for Telehealth Psychological Well being Companies: The Invoice would delay the reimbursement requirement for physicians and practitioners to conduct in-person exams inside six months earlier than an preliminary telehealth service for functions of prognosis, analysis, or therapy of a psychological well being dysfunction till January 1, 2027.
- Audio-Solely Telehealth: The Invoice would offer that telehealth providers furnished utilizing audio-only telecommunications expertise will proceed to be lined and reimbursable.
- Recertification of Eligibility for Hospice Care: The Invoice would lengthen the permissible use of telehealth for conducting face-to-face encounters previous to recertification of eligibility for hospice care.
- HDHP/HSA Protected Harbor for Telehealth Companies: For plan years starting between December 31, 2022 and January 1, 2027, the Invoice would lengthen the flexibility of well being financial savings account-qualifying high-deductible well being plans to cowl telehealth providers on a pre-deductible foundation.
Different Notable Provisions
Along with extending the flexibilities described above, the Invoice additionally consists of the next provisions:
- Required Use of Modifiers in Sure Circumstances: The Invoice would direct the Secretary of the Division of Well being and Human Companies (“HHS”) to ascertain necessities for codes or modifiers by January 1, 2026 for claims for telehealth providers which can be furnished: (1) by way of a telehealth digital platform by a doctor or practitioner that contracts with an entity that owns the platform or has a fee association with an entity to be used of the platform or (2) incident to a doctor’s or practitioner’s skilled service.
- Acute Hospital Care at Residence: The Invoice would lengthen hospital at dwelling flexibilities till 2029.
Modifications Underneath the CY 2025 Doctor Price Schedule Last Rule
CMS additionally not too long ago finalized sure adjustments to take care of sure telehealth flexibilities inside its regulatory authority within the Calendar 12 months 2025 Doctor Price Schedule Last Rule (“Last Rule”).[ii] The adjustments applied by the Last Rule embody:
- Prolonged Allowance of “Distant Direct Supervision”: Sure providers, together with most incident-to providers and lots of diagnostic assessments, should be furnished below particular minimal ranges of supervision by a doctor or different practitioner. When providers require “direct supervision”, the supervising practitioner should be “instantly accessible” to furnish help and path. “Direct supervision” shall be outlined to allow the presence and “instant availability” of the supervising practitioner by way of real-time audio and visible interactive telecommunications by way of December 31, 2025.
- CMS additionally completely defines “direct supervision” to incorporate “instant availability” of the supervising practitioner by way of audio/video real-time communications expertise (excluding audio-only) just for the next incident-to providers:
- providers furnished incident to a doctor or different practitioner’s service when supplied by auxiliary personnel employed by the billing practitioner and dealing below their direct supervision, and for which the underlying HCPCS code has been assigned an expert element or technical element indicator of “5”, and
- providers described by CPT code 99211 (Workplace or different outpatient go to for the analysis and administration of a longtime affected person that will not require the presence of a doctor or different certified well being care skilled).
- Prolonged Flexibility to Use Enrolled Location as “Distant Website” Deal with: Telehealth practitioners are permitted to invoice from their at the moment enrolled location as a substitute of their dwelling tackle when offering telehealth providers from their dwelling by way of December 31, 2025.
- Revision of “Telecommunications System” Definition to Enable Everlasting Use of “Audio-Solely” in Sure Circumstances: CMS completely revises the definition of “telecommunications system” to additionally embody “two-way, real-time audio-only communication expertise for any telehealth service furnished to a beneficiary of their dwelling if the distant web site doctor or practitioner is technically able to utilizing an interactive telecommunications system as outlined as multimedia communications gear that features, at a minimal, audio and video gear allowing two-way, real-time interactive communication, however the affected person is just not able to, or doesn’t consent to, the usage of video expertise” starting January 1, 2025.
Different notable provisions of the Last Rule embody:
- New Additions to the Checklist of Telehealth Companies: Whereas CMS didn’t completely add any codes to the Medicare Checklist of Telehealth Companies, it added the next codes on a provisional foundation:
- HCPS Code G0011 (PrEP for HIV)
- HCPS Code G0013 (PrEP for HIV)
- HCPS Codes GCTD1 – 3 (Caregiver Coaching In Direct Care Methods and Methods)
- HCPS Codes GCTB1 – 2 (Particular person Habits Administration/Modification Caregiver Coaching)
- CPT Codes 97550-97552 (Caregiver Coaching in Methods To Facilitate Affected person Purposeful Efficiency within the Residence or Group)
- CPT Codes 96202 – 96203 (Group Habits Administration/Modification Caregiver Coaching)
- No Recognition of New AMA Telemedicine Analysis and Administration (E/M) Companies Codes: The American Medical Affiliation (“AMA”) not too long ago revised the CPT Codebook and valued seventeen new codes (9X075 – 9X091) to explain telemedicine Analysis and Administration (“E/M”) providers. CMS declines recognizing and paying for the brand new codes as a result of they mirror present workplace/outpatient E/M codes, however assigns a process standing indicator of “I” to point that there’s a extra particular code that must be used for Medicare functions.
Trying Ahead
The extension of telehealth flexibilities below the Invoice and the Last Rule can be a aid for a lot of suppliers and their sufferers who depend on telehealth for medical care, and who’re carefully watching Congress’ progress. However, the piecemeal method to telehealth waivers, and Congress’ continued reliance on solely momentary extension of essential flexibilities, has created intricate compliance obligations for suppliers. We’ll proceed monitoring for updates and when you have any questions on these legal guidelines or their impression on you or your enterprise, please contact a member of the Sheppard Mullin Healthcare Crew.
FOOTNOTES
[i] For extra info on the 2023 CAA please see the next useful resource: Key Healthcare Provisions of the Consolidated Appropriations Act, 2023 | Healthcare Legislation Weblog (sheppardhealthlaw.com).
[ii] 89 FR 97710 (Dec. 9, 2024).