Back in March 2020, the Centers for Medicare and Medicaid Services (CMS) added several services to the Medicare telehealth services list for the duration of the COVID-19 Public Health Emergency (PHE).  Extending coverage of telehealth services was deemed necessary during the pandemic in order to lessen risk of exposure for patients and health care providers while maintaining access to services. In the proposed rule for the calendar year 2021 physician fee schedule, published in the Federal Register on August 17, 2020, CMS requested public comment on extending coverage for certain telehealth services through December 31, 2021, or permanently. 


CMS divides requests to add services to the Medicare telehealth services list into two categories.  Category 1 includes services that are similar to professional consultations, office visits, and office psychiatry services that are currently on the Medicare telehealth services list.  Category 2 includes services that are not similar to services on the existing list.  Requests to add Category 2 services must be justified based on peer reviewed clinical studies demonstrating that use of a telecommunications system to furnish the service produces demonstrated clinical benefit.  For the 2021 fee schedule, CMS reviewed the telehealth services approved for coverage during the PHE, and proposes to add nine codes to the telehealth services list under Category 1. 

During the pandemic, CMS utilized its authority to waive certain regulatory requirements during the PHE, as well as additional authorities granted in legislation enacted in March 2020, to greatly expand Medicare telehealth services.  However, when the PHE ends, so will the expanded telehealth coverage.  Since CMS’s annual rulemaking schedule may not align with expiration of the PHE, clinicians using telehealth to deliver the expanded services may not have the opportunity to develop the evidence required to evaluate these services for permanent addition to the Medicare telehealth services list.  To avoid jeopardizing beneficiary access to services which likely offer clinical benefit, CMS proposes to create a Category 3 to add services to the Medicare telehealth services list on a temporary basis, through the end of the calendar year in which the PHE ends.  Factors considered in assessing services would include:
·      Whether, outside the circumstances of the PHE, there are increased concerns for patient safety if the service is furnished as a telehealth service;
·      Whether, outside the circumstances of the PHE, there are concerns about whether the provision of the service via telehealth is likely to jeopardize quality of care; and
·      Whether all elements of the service could fully and effectively be performed by a remotely located clinician using two-way audio/video telecommunications technology.

Applying these considerations, CMS proposes to add 13 codes to the telehealth services list under Category 3.  On the other hand, there is a broad list of codes that CMS does not propose to retain.  For some of the codes that CMS does not propose to keep on the list of telehealth services, such as discharge interactions, higher level emergency department visits, and hospital intensive care unit visits, CMS believes that high patient acuity requires an in-person physical examination.

Another topic discussed in the 2021 fee schedule proposed rule is payment for audio-only visits.  While many in the industry think of telephone visits as part of telehealth, in fact audio-only visits are not within the definition of telehealth services under the Medicare regulations.  The regulations[i] provide that Medicare pays for covered telehealth services furnished via an interactive telecommunications system including audio and video equipment, and specifically state that telephones do not meet the definition of an interactive telecommunications system.[ii]  CMS established separate payment for telephone evaluation and management (E&M) services during the pandemic utilizing its waiver authority.  However, outside the PHE, CMS lacks authority to waive the requirement that telehealth services be furnished using audio/video communication technology.  CMS notes that use of audio-only services during the pandemic was more prevalent than expected, because many Medicare beneficiaries did not utilize video-enabled communication technology from their homes.  Therefore, CMS invites comments on whether it should develop coding for a service similar to a virtual check-in, and whether payment for such services should be temporary or permanent.
Finally, the proposed rule invites comments on other topics related to telehealth, such as billing for services incident to physician services, supervision of services by interactive telecommunications technology, and supervision of residents through audio/video real-time communications technology.

[i] 42 C.F.R. § 410.78
[ii] 42 C.F.R. § 410.78(a)(3)



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