May 16, 2022

Volume XII, Number 136


May 16, 2022

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CMS Addresses Virtual Care Expansion in CY 2022 Medicare Physician Fee Schedule Proposal


On July 23, 2021, the Centers for Medicare & Medicaid Services (CMS) published its annual proposed changes to the Medicare Physician Fee Schedule (MPFS), which include several key telehealth and other virtual care-related proposals. The proposals address long-standing restrictions that have historically limited the use of telehealth and virtual care, including geographic and originating site restrictions, and limitations on audio-only care, as well as coverage extensions for some services added during the COVID-19 public health emergency.

These proposals include:

  • The implementation of the Consolidated Appropriations Act, 2021 (CAA) in-person visit requirement for mental health services that either do not meet Medicare’s typical geographic restrictions or occur when the originating site is the patient’s home, regardless of geography

  • The ability for certain mental health services to be delivered via audio-only communications when patients are located in their homes (however, in these cases, the provider would also be required to comply with the in-person visit requirement described above)

  • The extension of coverage of the services was temporarily added to the Medicare telehealth services list (Category 3 services) through the end of CY 2023 to allow more time for evaluation, and the rejection of proposed new, permanent Medicare telehealth services

  • The permanent adoption of HCPCS Code G2252 for extended virtual check-ins, which was established on an interim basis in the CY 2021 MPFS.


1. Removal of geographic restriction and originating site requirements for mental and behavioral health services if an in-person visit is provided within six months prior to the initial visit and every six months thereafter

In the CAA, Congress removed the baseline geographic restrictions on the coverage of telehealth services, and added the home of a Medicare beneficiary as a permissible originating site for the diagnosis, evaluation or treatment of a mental health disorder. While tele-mental health advocates generally viewed this as a positive change, in order for providers to take advantage of these additional flexibilities, Congress added a requirement that they furnish a covered service in person to the patient within six months prior to the initial telehealth services, and then periodically on a schedule determined by CMS. The in-person requirement was not extended to telehealth services for diagnosed substance use disorder or co-occurring mental health disorders, for which the home is a qualifying site and geographic restrictions do not apply.

Many observers interpreted this in-person requirement as necessitating an in-person visit before CMS would cover any telehealth services for the diagnosis, evaluation or treatment of a mental health disorder. In the CY 2022 MPFS, however, CMS clarifies that the in-person requirement only applies in situations where the telehealth service is not provided for purposes of diagnosis, evaluation or treatment of a mental health disorder other than for treatment of a diagnosed substance use disorder or co-occurring mental health disorder, and only in locations that do not meet the geographic restrictions or when the originating site is the home of the patient, regardless of geography. CMS seeks comment on whether to adopt a claims-based mechanism to distinguish between mental health services that are subject to the in-person requirement and those that are not, and on whether the agency should issue a regulation that clarifies the scope of the in-person requirement.

With respect to subsequent in-person evaluations, CMS proposes to require that they occur at least every six months before each telehealth service furnished for the diagnosis, evaluation or treatment of mental health disorders by the same practitioner. CMS also seeks comment on whether the in-person service could also be furnished by another physician or practitioner of the same specialty and same subspecialty within the same group as the physician or practitioner who furnishes the telehealth service, either without limitation or only when the physician or practitioner who furnishes the telehealth service is unavailable or the two professionals are practicing as a team. CMS notes that although the language of the CAA states that the physician or practitioner furnishing the in-person, non-telehealth service must be the same person as the practitioner furnishing the telehealth service, it has under several circumstances historically treated the billing practitioner and other practitioners of the same specialty or subspecialty in the same group as if they were the same individual (e.g., for purposes of deciding whether a patient is a new or established patient, or whether to bill for initial or subsequent visit, practitioners of the same specialty/subspecialty in the same group are treated as the same person).

2. Reassessment of CMS’s interpretation of “interactive communications technology” to permit audio-only telehealth services for certain mental health services

CMS proposes to amend its definition of the term “interactive communications technology,” which has historically required all telehealth services to be delivered via a two-way, real-time audiovisual encounter, to include certain audio-only communications. Audio-only was added as a permissible modality for certain services during the public health emergency (PHE), and CMS found that many of the audio-only services delivered during the pandemic were for mental health treatment. Because of this prevalence and the fact that mental health services primarily involve verbal conversation, CMS proposes to limit the expanded definition to communications between established patients receiving mental and behavioral health counseling and therapy services (including opioid treatment programs). Such audio-telehealth services would only be permitted when patients are located in their home and when such patients either have technical limitations or choose not to use interactive video. These services also would be subject to the same in-person visit requirement that applies to mental health services delivered via other types of telehealth when the patient is located in the home. Providers would also be required to certify to the capability to provide services using two-way audiovisual technology using a new modifier proposed by CMS. All other telehealth services would be required to be conducted with real-time audio-video interactive technology.

3. Extension of coverage to the end of CY 2023 for services temporarily added to the Medicare Telehealth Services List during the COVID-19 PHE

Before the COVID-19 PHE, in order to be covered by Medicare and included on the Medicare Telehealth Services List, a telehealth service was required to meet one of two sets of criteria: the service either had to be similar to professional consultations, office visits and office psychiatry services specifically enumerated in the statute as constituting telehealth (Category 1 services), or, if not similar, the service had to be accurately described by the corresponding code when furnished via telehealth and have a demonstrated clinical benefit when delivered via telehealth (Category 2 services).

In the CY 2021 MPFS, CMS established a Category 3 telehealth services list as a way of identifying a subset of the temporarily covered telehealth services for limited continued coverage after the end of the PHE, during which time CMS would evaluate the services for permanent inclusion under its Category 1 and Category 2 criteria. In the CY 2022 MPFS, CMS proposes to extend coverage of Category 3 telehealth services to the end of CY 2023. CMS believes extending the time “will allow us time to collect more information regarding utilization of these services during the pandemic, and provide stakeholders the opportunity to continue to develop support for the permanent addition of appropriate services to the [Medicare Telehealth Services List] through our regular consideration process, which includes notice-and-comment rulemaking.” CMS also solicits comment on whether any of the services temporarily added to the Medicare Telehealth Services List should be now added to the Category 3 list.

CMS declined to add any of the services that had been requested for inclusion on the Medicare Telehealth Services List. CMS determined that none met the criteria for permanent inclusion under Category 1 or Category 2 for a variety of reasons, which may be instructive for those seeking ways to expand telehealth reimbursement opportunities.

4. Permanent Adoption of the Virtual Check-In (Code G2252)

In the CY 2021 MPFS Final Rule, CMS established, on an interim basis, code G2252 for an extended virtual check-in (11-20 minutes), which allows healthcare providers to briefly check in with an established patient using any form of synchronous communication technology, including audio-only. CMS proposes to permanently adopt coding and payment for code G2252.

© 2022 McDermott Will & EmeryNational Law Review, Volume XI, Number 208

About this Author

Amanda Enyeart Healthcare and Life Sciences Attorney Mcdermott WIll Emery Law Firm

Amanda Enyeart is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  Amanda focuses her practice on general regulatory health law matters. 

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