On July 31, 2024, the Facilities for Medicare & Medicaid Providers (“CMS”) issued its proposed rule (“Proposed Rule”) for the 2025 Medicare Doctor Charge Schedule, which incorporates implications for telehealth providers reimbursable by Medicare. Though the vast majority of telehealth waivers enacted through the COVID-19 public well being emergency (the “PHE”) are set to run out on the finish of 2024 within the absence of legislative motion, CMS has proposed to depart sure key flexibilities in place, together with the allowance for physicians and different practitioners to furnish distant “direct supervision” via their fast availability by way of audio-video know-how.
Feedback are due on September 9, 2024.
PHE Telehealth Flexibilities Expiring for 2025
CMS issued quite a few telehealth waivers through the PHE, together with flexibilities across the definitions of “originating web site” and “audio-only telehealth”, and the kinds of practitioners who might invoice for Medicare telehealth providers. The 2023 Consolidated Appropriations Act (“CAA”) prolonged sure telehealth flexibilities via December 31, 2024.[1] Within the Proposed Rule, CMS discusses the impression of telehealth flexibilities on beneficiary entry to care and notes that the originating web site and repair web site flexibilities prolonged by the CAA are set to run out on December 31, 2024. CMS seeks feedback on what impression, if any, the expiration of present flexibilities might have on total service utilization for CY 2025. Absent Congressional motion, nevertheless, CMS won’t (and takes the place that it can’t) prolong these flexibilities into 2025. However, CMS has proposed sure modifications inside its regulatory authority to take care of different vital flexibilities for telehealth providers.
Proposed Flexibilities for 2025
Prolonged Allowance of Distant “Direct Supervision”
Sure providers, together with most incident-to providers and lots of diagnostic assessments, should be furnished underneath 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 course. Underneath the PHE flexibilities, as prolonged via 2024, “direct supervision” is permitted via digital presence utilizing audio/video real-time communications know-how, so long as the supervising practitioner is instantly obtainable to have interaction by way of audio/video know-how (excluding audio-only). CMS proposes persevering with to outline “direct supervision” to allow the presence and “fast availability” of the supervising practitioner via real-time audio and visible interactive telecommunications via December 31, 2025.
CMS additionally proposes making this flexibility everlasting for sure providers. Particularly, CMS proposes everlasting adoption of the definition of “direct supervision” to incorporate “fast availability” of the supervising practitioner via 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 underneath their direct supervision, and for which the underlying HCPCS code has been assigned knowledgeable 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 won’t require the presence of a doctor or different certified well being care skilled).
Prolonged Flexibility to Use Enrolled Location as “Distant Web site” Tackle
Through the PHE, and thru 2024, telehealth practitioners are permitted to invoice from their presently enrolled location as an alternative of their dwelling tackle when offering telehealth providers from their dwelling. Within the Proposed Rule, CMS proposes extending this flexibility via December 31, 2025 attributable to practitioners’ security and privateness considerations regarding itemizing dwelling addresses on enrollment kinds.
Revision of “Telecommunications System” Definition to Permit Everlasting Use of “Audio-Solely” in Sure Circumstances
PHE waivers established flexibilities for using interactive telecommunications techniques to furnish telehealth providers. Within the Proposed Rule, CMS proposes to permit some continued flexibility for the technological mode via which telehealth providers could also be offered by revising the definition of “Interactive Telecommunications System” to additionally embrace “two-way, real-time audio-only communication know-how 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 tools that features, at a minimal, audio and video tools allowing two-way, real-time interactive communication, however the affected person isn’t able to, or doesn’t consent to, using video know-how” starting January 1, 2025. Claims which meet these necessities and are furnished by way of audio-only telehealth ought to be submitted with CPT modifier “93”.
Of be aware, PHE waivers presently enable any web site in the USA, together with the affected person’s dwelling, to function an originating web site. After the waivers expire on December 31, 2024, the affected person’s dwelling could also be an originating web site just for (1) the analysis, analysis, or remedy of a psychological well being or substance use dysfunction or (2) month-to-month Finish-Stage Renal Illness scientific assessments. This variation might considerably restrict the impression of the proposed revision to the definition of Interactive Telecommunications System.
New Additions to the Record of Telehealth Providers
CMS proposed including sure codes to the Proposed Record of Telehealth Providers (the “Record”) on a provisional foundation. The Record contains the providers which can be payable underneath the Medicare Doctor Charge Schedule when furnished by way of telehealth. No codes are proposed to be added on a everlasting foundation, however the proposed provisional additions embrace:
- HCPS Code G0248 (Residence Worldwide Normalized Ratio Monitoring)
- 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 Residence or Neighborhood)
- CPT Codes 96202 – 96203 (Group Habits Administration/Modification Caregiver Coaching)
No Recognition of New AMA Telemedicine Analysis and Administration (E/M) Providers 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 proposes to say no recognizing and paying for the brand new codes as a result of they mirror present workplace/outpatient E/M codes. For these new codes, CMS additionally proposes assigning a process standing indicator of “I” to point that there’s a extra particular code that ought to be used for Medicare functions.
Different Takeaways
Whereas the Proposed Rule provides sure vital continued flexibilities for telehealth suppliers, others are set to run out on the finish of this yr. Though quite a few legal guidelines have been launched to increase or completely undertake these insurance policies, suppliers presently face a fancy patchwork of expired and prolonged telehealth waivers, leading to intricate compliance obligations for suppliers and doubtlessly limiting entry to look after sufferers. We’ll proceed monitoring for updates and suppliers with questions or looking for counsel might contact a member of the Sheppard Mullin Healthcare Crew.
FOOTNOTES
[1] For extra data on PHE telehealth waivers presently in place via 2024 and the 2023 CAA please see the next sources: CMS Updates Record of Telehealth Providers for CY 2023 | Healthcare Regulation Weblog (sheppardhealthlaw.com) and Key Healthcare Provisions of the Consolidated Appropriations Act, 2023 | Healthcare Regulation Weblog (sheppardhealthlaw.com).