Telehealth in the 2022 Medicare Physician Fee Schedule: Audio-Only Telehealth for Mental Health Made Permanent, and CMS Punts on Remote Direct Supervision
On November 2, 2021, the Centers for Medicare and Medicaid Services (“CMS”) finalized the Medicare Physician Fee Schedule for Calendar Year 2022 (the “Final 2022 MPFS” or the “Final Rule”). As we noted in our July article discussing the Proposed 2022 MPFS, CMS made some significant proposed changes to allow for audio-only telehealth in some limited circumstances. In addition, the agency also proposed to enable remote “direct supervision,” which would allow practitioners to supervise clinical staff billing incident to their services as long as they could be available by audio/video communication as necessary.
TL;DR: CMS adopted, as proposed, its audio-only telemental health provisions, and declined to make a determination on remote direct supervision. The final rule seems to indicate that MedPAC’s 2021 Report to Congress had a significant dampening effect on CMS’s appetite for expansion in telehealth services generally, though MedPAC seems to be persuaded that expansion for the purposes of expanding access to mental health services outweighs any perceived program integrity issues.
Extension in Coverage for Category 3 Telehealth Services
CMS finalized the proposed extended timeframe for reimbursement of temporary, Category 3 telehealth services until the end of 2023. This means that, even if the PHE ends in 2022, providers may bill for Category 3 telehealth services until the close of the following year. Note that those services added to the list on an interim basis (in response to the PHE) that were not extended in the 2021 MPFS will not be reimbursable as soon as the PHE ends.
Key Opportunity: Providers and digital health companies have until February 10, 2022 to submit requests for permanent addition of Category 3 services to the Medicare telehealth services list. CMS will evaluate such requests and propose any additions in the 2023 Proposed Medicare Physician Fee Schedule.
New Category 3 Telehealth Services
In the proposed rule, CMS stated it would consider additional requests to add services to the Medicare telehealth services list on a Category 3 basis. CMS rejected requests to add certain therapy, audiology, and speech-language pathology services to the Medicare telehealth list on a Category 3 basis that would enable PT/OT/SLP providers to bill these services remotely after the expiration of the PHE (incident to physician services), citing a lack of clinical evidence. In addition, CMS declined to add audio-only codes 99441-99443 (Telephone evaluation and management services by a physician or other qualified health care professional who may report evaluation and management services provided to an established patient, parent, or guardian not originating from a related E/M service provided within the previous 7 days nor leading to an E/M service or procedure within the next 24 hours or soonest available appointment), citing its belief that two-way audio/video communications remains the most appropriate standard for telehealth services (*except mental health services).
However, CMS did finalize the addition of 4 additional outpatient cardiac rehabilitation codes:
CPT Code 93797 (Physician or other qualified health care professional services for outpatient cardiac rehabilitation; without continuous ECG monitoring (per session));
CPT Code 93798 (Physician or other qualified health care professional services for outpatient cardiac rehabilitation; with continuous ECG monitoring (per session));
HCPCS G0422 (Intensive cardiac rehabilitation; with or without continuous ecg monitoring with exercise, per session)); and
HCPCS G0423 (Intensive cardiac rehabilitation; with or without continuous ecg monitoring; without exercise, per session)).
Key Opportunity: At-home cardiac rehab providers and digital health companies have until the end of 2023 to bill for remote services. In order to ensure these codes are added to the permanent Medicare telehealth services list, these companies and providers will need to submit evidence to support permanent addition to the list on a Category 1 or Category 2 basis by February 2022.
Tele-Mental Health Services in the Patient’s Home
CMS finalized its proposal to add a beneficiary’s home as an originating site (thereby removing geographic restrictions) for beneficiaries receiving mental health services via telehealth. CMS has clarified that “home” includes temporary lodging such as hotels and homeless shelters as well as locations a short distance from the beneficiary’s home. Recall that these changes emerged from Section 123 of the Consolidated Appropriations Act of 2021 (CAA), which eliminated geographic restrictions for tele-mental health, but required that an in-person, non-telehealth service must be provided to the beneficiary within six months prior to the initial telehealth service, leaving it to CMS to establish the frequency of subsequent in-person visits.
Providers seeking to bill Medicare for tele-mental health services delivered to patients located in their homes may do so if:
The provider (or another provider in the same practice and subspecialty) has conducted an in-person (non-telehealth) visit within 6 months of the initial tele-mental health service;
The services are medically necessary;
After the initial tele-mental health visit, the provider conducts an in-person (non-telehealth) visit at least once every 12 months, EXCEPT this annual visit is not needed if the patient and practitioner consider the risks and burdens of an in-person service and agree that, on balance, these outweigh the benefits (such as the opportunity to assess in-person body language or conducting a physical exam to monitor for medication side effects), and the practitioner documents the basis for that decision in the patient’s medical record.
**Note: For those patients with a diagnosed substance use disorder (SUD), CMS already reimburses for telehealth services provided in the patient’s home for treatment of that disorder or a co-occurring mental health disorder. The final rule does not impact this reimbursement rule.
Key Opportunity: The requirement of an in-person visit in conjunction with tele-mental health services may incentivize the creation of hybrid mental health services models, with a network of providers available for in-home “house-call” visits as necessary.
Audio-Only Mental Health Services
CMS finalized its proposal to redefine “interactive telecommunications system” to include interactive, real-time, two-way audio-only technology for telehealth services furnished for the diagnosis, evaluation, or treatment of a mental health disorder. CMS created this flexibility for mental health services because, they posit, these services primarily involve verbal conversation and therefore a visual connection is less critical.
This means that, after the COVID-19 PHE ends, mental health services delivered through audio-only means will continue to be reimbursable, AS LONG AS:
The practitioner has the technical capability at the time of the service to use an interactive telecommunications system that includes video;
The beneficiary is incapable of, or fails to consent to, the use of video technology for the service;
The beneficiary is located at his or her home at the time the service is delivered; and
The practitioner documents the reason for using audio-only technology in the patient medical record and the provider uses the appropriate service level modifier.
As we predicted, many commenters requested that CMS enable non-mental health services like outpatient E/M visits to be conducted via audio-only means, some citing specific codes like psychological and neuropsychological testing evaluation (CPT codes 96130-96133) and Health Behavior Assessment and Intervention (HBAI) services (CPT codes 96156-96171) that don’t require visualization of the patient. The agency declined, stating that it is CMS’s belief that every outpatient service NOT furnished for the purpose of diagnosis, evaluation, or treatment of a mental health disorder requires live interactive audio and video.
Key Opportunity: The good news here is that we now know CMS is willing to get creative in their regulatory interpretation of this key term, so there does not appear to be a strictly statutory barrier to expanding audio-only services.
It's a “NO” (for now) on Remote Direct Supervision
In the proposed rule, CMS sought feedback on whether the agency should make permanent the temporary exception to allow immediate availability for direct supervision through virtual presence (“remote direct supervision”) to facilitate the provision of telehealth services by clinical staff of physicians and other practitioners incident to their own professional services. Commenters offered support for remote supervision, some offering a few alternatives like modifying the definition of direct supervision to include the presence of the supervising practitioner via real-time, interactive audio/video technology, or enabling remote direct supervision when a nurse practitioner is furnishing the service. Citing MedPAC’s concerns about patient safety, CMS declined to address this in the final rule, stating that the agency will consider addressing the issues raised by these comments in future rules or guidance, as appropriate.
Key Opportunity: Remote direct supervision is currently permitted through the later of the end of the calendar year in which the PHE for COVID-19 ends or December 31, 2021. We predict that the PHE will be extended beyond 2021, and that remote direct supervision will be permissible until at least December 31, 2022. This provides stakeholders the opportunity to advocate for this policy for inclusion in the 2023 MPFS and, possibly, a policy change using sub-regulatory agency guidance. (Note: During the Trump administration, the agency declined to create policy using guidance (as opposed to regulations), but the current administration may be more willing to do so. Guidance doesn’t require the formality of rulemaking and is much more flexible.)
Permanent adoption of HCPCS G2252 for longer Virtual Check-ins
CMS finalized its proposal to permanently establish separate coding and payment for the longer virtual check-in service described by HCPCS code G2252 for CY 2022 using a crosswalk to the value of CPT code 99442. Commenters stated that CMS should create a parallel code to HCPCS code G2252, billable by those practitioners who cannot independently bill for E/M services, similar to the policy CMS adopted for HCPCS codes G2010 and G2012. CMS declined to do so, but noted the agency would consider this policy in future rulemaking.
HCPCS G2252 (Brief communication technology-based service, e.g., virtual check-in service, by a physician or other qualified health care professional who can report evaluation and management services, provided to an established patient, not originating from a related E/M service provided within the previous 7 days nor leading to an E/M service or procedure within the next 24 hours or soonest available appointment; 11–20 minutes of medical discussion.)
Telehealth for Diabetes Care
CMS finalized its proposed regulatory change, specifying that Medical Nutrition Therapy (MNT) and Diabetic Self-Management Training (DSMT) services may be provided as telehealth services when registered dietitians or nutrition professionals act as distant site practitioners.
Rural Health Center (RHC) and Federally Qualified Health Center (FQHC) Audio-Only Tele-mental health
As we described in our prior post, during the PHE, RHCs and FQHCs can bill for telehealth services under the MPFS as a distant site practitioner using HCPCS code G2025. Once the PHE ends, the payment mechanism will revert to the established methodology—the RHC All Inclusive Rate (AIR) or the FQHC Prospective Payment System (PPS), and these providers would no longer be able to bill for these services unless they’re delivered in person. CMS finalized its proposal to allow Part B reimbursable mental health visits to include (1) live, interactive audio/video; or (2) audio-only if:
The beneficiary is not capable of, or does not consent to, the use of devices that permit a live, audio/video interaction;
The practitioner appends the appropriate service level modifier;
The practitioner (or another provider in the same practice and subspecialty) has conducted an in-person (non-telehealth) visit within 6 months of the initial tele-mental health service;
The services are medically necessary; and
After the initial tele-mental health visit, the provider conducts an in-person (non-telehealth) at least once every 12 months of each tele-mental health visit, EXCEPT this annual visit is not needed if the patient and practitioner consider the risks and burdens of an in-person service and agree that, on balance, these outweigh the benefits (such as the opportunity to assess in-person body language or conducting a physical exam to monitor for medication side effects), and the practitioner documents the basis for that decision in the patient’s medical record.
*Note: RHCs and FQHCs must report and be paid for tele-mental health visits furnished via real-time telecommunication technology in the same way they currently do when these services are furnished in-person (via the AIR/PPS). Payment for virtual communications and some care management services (excluding Remote Patient Monitoring) furnished at RHCs and FQHCs, however, will be paid based on PFS rates.
Audio-Only Telehealth for Opioid Treatment Programs (OTPs)
CMS is finalizing its propose to allow OTPs to continue to furnish the therapy and counseling portions of their weekly counseling and therapy bundles, as well as any additional counseling or therapy that is billed under the add-on code, using audio-only telephone calls rather than via live, interactive audio/video following the end of the PHE for COVID-19 if:
The practitioner has the technical capability at the time of the service to use an interactive telecommunications system that includes video;
The beneficiary is incapable of, or fails to consent to, the use of live audio/video technology; and
The practitioner documents the reason for using audio-only technology in the patient medical record and the provider uses the appropriate service level modifier.
The Big Picture
CMS continues to demonstrate creativity and some degree of flexibility in its approach to expanding access to care via telehealth services. However, the change to telehealth that will have the largest impact by far must come from Congress in the form of legislation to remove the originating site and geographic restrictions imposed in legislation dating back to 1997.