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 reward for well being care suppliers and sufferers – an expansive well being care bundle that may prolong sure telehealth flexibilities promulgated through the COVID-19 public well being emergency (“PHE”) for an extra two years. The prolonged telehealth flexibilities are presently set to run out on December 31, 2024. This extension would usually enable suppliers to proceed to serve Medicare sufferers by way of telehealth in keeping with 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 intently monitoring this evolving story.
Flexibilities That Would Be Prolonged by the Invoice
The Facilities for Medicare & Medicaid Companies (“CMS”) issued a lot of telehealth waivers through the PHE, a few of which had been prolonged by means of December 31, 2024 by the 2023 Consolidated Appropriations Act (“CAA”).[i] The Invoice would prolong these flexibilities by means of December 31, 2026. The flexibilities that may be prolonged by the Invoice are:
- Definition of “Originating Website”: The Invoice would prolong the definition of “originating website” to imply any website within the U.S., together with the house of a person. An “originating website” is the situation at which the telehealth eligible particular person is situated on the time the service is furnished by way of a telecommunications system.
- Definition of “Practitioner”: The Invoice would prolong the definition of “practitioner” to additionally embrace a professional occupational therapist, certified bodily therapist, a professional speech-language pathologist, and a professional 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 prolong the authorization for Rural Well being Clinics (“RHCs”) and Federally Certified Well being Facilities (“FQHCs”) to supply and reimburse for telehealth providers.
- In-Individual 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 remedy of a psychological well being dysfunction till January 1, 2027.
- Audio-Solely Telehealth: The Invoice would supply that telehealth providers furnished utilizing audio-only telecommunications know-how will proceed to be lined and reimbursable.
- Recertification of Eligibility for Hospice Care: The Invoice would prolong the permissible use of telehealth for conducting face-to-face encounters previous to recertification of eligibility for hospice care.
- HDHP/HSA Secure Harbor for Telehealth Companies: For plan years starting between December 31, 2022 and January 1, 2027, the Invoice would prolong the power 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 determine necessities for codes or modifiers by January 1, 2026 for claims for telehealth providers which are furnished: (1) by means 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 Dwelling: The Invoice would prolong hospital at residence flexibilities till 2029.
Modifications Beneath the CY 2025 Doctor Price Schedule Closing Rule
CMS additionally lately finalized sure adjustments to keep up sure telehealth flexibilities inside its regulatory authority within the Calendar 12 months 2025 Doctor Price Schedule Closing Rule (“Closing Rule”).[ii] The adjustments carried out by the Closing Rule embrace:
- Prolonged Allowance of “Distant Direct Supervision”: Sure providers, together with most incident-to providers and lots of diagnostic exams, 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 obtainable” to furnish help and path. “Direct supervision” will likely be outlined to allow the presence and “speedy availability” of the supervising practitioner by means of real-time audio and visible interactive telecommunications by means of December 31, 2025.
- CMS additionally completely defines “direct supervision” to incorporate “speedy availability” of the supervising practitioner by means of audio/video real-time communications know-how (excluding audio-only) just for the next incident-to providers:
- providers furnished incident to a doctor or different practitioner’s service when offered 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” Tackle: Telehealth practitioners are permitted to invoice from their presently enrolled location as an alternative of their residence handle when offering telehealth providers from their residence by means of December 31, 2025.
- Revision of “Telecommunications System” Definition to Permit Everlasting Use of “Audio-Solely” in Sure Circumstances: CMS completely revises the definition of “telecommunications system” to additionally embrace “two-way, real-time audio-only communication know-how for any telehealth service furnished to a beneficiary of their residence if the distant website 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, using video know-how” starting January 1, 2025.
Different notable provisions of the Closing Rule embrace:
- New Additions to the Listing of Telehealth Companies: Whereas CMS didn’t completely add any codes to the Medicare Listing 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 Practical Efficiency within the Dwelling or Neighborhood)
- 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”) lately 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.
Wanting Ahead
The extension of telehealth flexibilities below the Invoice and the Closing Rule can be a reduction for a lot of suppliers and their sufferers who depend on telehealth for medical care, and who’re intently watching Congress’ progress. Nonetheless, the piecemeal method to telehealth waivers, and Congress’ continued reliance on solely short-term extension of important flexibilities, has created intricate compliance obligations for suppliers. We’ll proceed monitoring for updates and you probably have any questions on these legal guidelines or their affect on you or your enterprise, please contact a member of the Sheppard Mullin Healthcare Crew.
FOOTNOTES
[i] For extra data on the 2023 CAA please see the next useful resource: Key Healthcare Provisions of the Consolidated Appropriations Act, 2023 | Healthcare Regulation Weblog (sheppardhealthlaw.com).
[ii] 89 FR 97710 (Dec. 9, 2024).
