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September 18, 2020

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COVID-19: Here’s What CMS Will Do With the Temporary Telehealth Codes When the PHE Ends

The Centers for Medicare & Medicaid Services (CMS) recently issued its proposed 2021 Physician Fee Schedule rule, enumerating the services CMS proposes to add (and remove) from the list of telehealth services covered under Medicare. This year’s list is unusually robust because CMS took into consideration all the telehealth services Medicare currently covers on a temporary basis due to the COVID-19 Public Health Emergency (PHE). 

CMS grouped the telehealth services into three lists: 1) nine (9) codes that will become permanent; 2) seventy-four (74) codes that will be removed when the PHE expires; and 3) thirteen (13) codes to add to the list, but only on a temporary basis (CMS dubbed these Category 3 codes). Concurrent with the CMS proposed rule, the White House issued an Executive Order designed to enhance access to telehealth services under Medicare by charging CMS to create even more virtual care coverage opportunities. 

This article discusses the new Medicare telehealth service code proposals specifically related to the Public Health Emergency. For a companion piece discussing CMS’ proposed 2021 changes for Medicare telehealth and virtual care generally, click here

Telehealth services that will become permanent

CMS proposed adding nine codes to the list of telehealth services covered under Medicare, to remain covered even after the PHE ends.

The codes are set forth in the table below.



Service Type

HCPCS/CPT Codes

Group Psychotherapy 90853
Domiciliary, Rest Home, or Custodial Care services, Established patients 99334-99335
Home Visits, Established Patient  99347- 99348 
Cognitive Assessment and Care Planning Services 99483
Visit Complexity Inherent to Certain Office/Outpatient E/Ms GPC1X
Prolonged Services 99XXX
Psychological and Neuropsychological Testing 96121

Keep in mind, these codes are already Medicare-covered telehealth services, albeit on a temporary basis under the PHE waiver rules. Subject to CMS’ final rule, these services are expected to be added, on a permanent basis, effective January 1, 2021.

Telehealth services that will be removed when the PHE expires

CMS proposed removing seventy-four (74) codes when the PHE expires. Although CMS temporarily allows the services addressed by these codes to be delivered via telehealth, CMS found no likelihood of clinical benefit after the PHE ends. Even with the development of additional clinical evidence, CMS believes these services are unlikely to satisfy Category 2 criteria to justify including on a permanent basis.;



Service Type 

HCPCS/CPT Codes 

Initial nursing facility visits, all levels (Low, Moderate, and High Complexity) 99304-99306
Psychological and Neuropsychological Testing 96136-96139
Therapy Services, Physical and Occupational Therapy, all levels 97161-97168, 97110, 97112, 97116, 97535, 97750, 97755, 97760, 97761, 92521- 92524, 92507
Initial hospital care and hospital discharge day management 99221-99223, 99238- 99239
Inpatient Neonatal and Pediatric Critical Care, Initial and Subsequent 99468- 99472, 99475- 99476
Initial and Continuing Neonatal Intensive Care Services 99477-99480
Critical Care Services 99291-99292
End-Stage Renal Disease Monthly Capitation Payment codes 90952-90953, 90956, 90959, 90962
Radiation Treatment Management Services 77427
Emergency Department Visits, Levels 4-5 99284-99285
Domiciliary, Rest Home, or Custodial Care services, New 99324-99328
Home Visits, New Patient, all levels 99341- 99345
Initial and Subsequent Observation and Observation Discharge Day Management 99217-99220, 99224- 99226, 99234-99236

While there are many codes slated for removal, this is only a proposed list. Stakeholders can submit comments and clinical data in support of making one or more of these codes permanent. However, barring any such compelling information submitted by telehealth industry advocates, we do not expect these codes to continue as telehealth services after the PHE expires. 

New telehealth services during the Public Health Emergency (Category 3 codes)

CMS created a new category of codes designed for adding new Medicare-covered telehealth services, but on a temporary basis. Codes added this way would remain covered through the end of the year in which the PHE expires. For example, if the PHE expires in March 2021, these codes will remain Medicare-covered telehealth services until December 31, 2021. The reason for this unique approach is because CMS believes these codes have promise to be added on a permanent basis, but require additional data, real-world use experience, and feedback from stakeholders before CMS can make a final determination. CMS will not remove these codes concurrent with the PHE expiration because it wants to give the public an extra opportunity to gather data and submit requests to CMS, asking CMS to add some of these codes to the Medicare telehealth services list on a permanent basis. 

The Category 3 codes demonstrate CMS’ openness to innovation and experimentation as it continues to expand coverage of virtual care services in the Medicare program. In short, Category 3 services are those likely to provide clinical benefit when furnished via telehealth, but for which there is not yet sufficient clinical evidence to evaluate making them permanent under existing Category 1 or Category 2 criteria. For a Category 3 service to become permanent, stakeholders will need to submit to CMS: 1) a description of relevant clinical studies that demonstrate the service, when furnished via telehealth, improves the diagnosis or treatment of an illness or injury, or improves the functioning of a malformed body part (including dates and findings of those studies); and 2) a list and copies of published peer reviewed articles relevant to the service when furnished via telehealth. 

CMS proposed adding the thirteen (13) codes set forth below to the Category 3 list:



Service Type

HCPCS/CPT Codes

Domiciliary, Rest Home, or Custodial Care services, Established patients 99336-99337
Home Visits, Established Patient 99349-99350
Emergency Department Visits, Levels 1-3 99281-99283
Nursing facilities discharge day management 99315-99316
Psychological and Neuropsychological Testing 96130- 96133

These codes are currently listed as Medicare-covered telehealth services for the duration of thePHE, but would be included on a more extended temporary basis, starting January 1, 2021. CMS is accepting public comment regarding whether any additional codes should be added to the Category 3 list.

How to submit comments to CMS

Providers, technology companies, entrepreneurs, and advocates interested in telemedicine and digital health should consider submitting comments to the proposed rule anonymously or otherwise via electronic submission at this link. Alternatively, commenters may submit comments by mail to:

  • Regular Mail: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1734-P, P.O. Box 8016, Baltimore, MD 21244-8016.

  • Express Overnight Mail: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1734-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850 (for express overnight mail). 

If submitting via mail, please be sure to allow time for comments to be received before the closing date. CMS is soliciting comments on the proposed rule until 5:00 p.m. on October 5, 2020.

Conclusion

The proposed changes for 2021 demonstrate CMS’ commitment to expanding meaningful patient access to care via telemedicine and digital health technology, both during the PHE and beyond. CMS is developing a post-pandemic strategic plan for telehealth, and industry advocates, entrepreneurs, and healthcare providers can use this moment to share their recommendations, ideas, and suggestions during the public comment period. This feedback—both policy ideas and by submitting clinical studies and concrete data—will be vital to CMS’ continued ability to improve and innovate under the Medicare program.

© 2020 Foley & Lardner LLPNational Law Review, Volume X, Number 225

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About this Author

Nathaniel Lacktman, Health Care Attorney, Foley and Lardner Law Firm
Partner

Nathaniel (Nate) Lacktman is a partner and health care lawyer with Foley & Lardner LLP, and a Certified Compliance & Ethics Professional (CCEP). His practice focuses on health care compliance, counseling, enforcement and litigation, as well as telemedicine and telehealth. Mr. Lacktman is a member of the firm’s Health Care Industry Team which was named “Law Firm of the Year — Health Care Law” for three of the past four years on the U.S. News – Best Lawyers® “Best Law Firms” list. 

813-225-4127
Rachel Goodman Health Care Attorney Foley Lardner Tampa
Senior Counsel

Rachel B. Goodman is a senior counsel with Foley & Lardner LLP, and a member of the firm’s Health Care Practice Group and national Telemedicine & Digital Health Industry Team. Hardworking, creative and dedicated to her clients, Rachel’s practice focuses on representing a wide array of clients nationally with transactional and related regulatory issues in the health care industry including health care providers, physician groups, hospitals, health systems, pharmacies, laboratories, home health agencies, skilled nursing facilities, assisted living facilities, rehabilitation agencies, durable medical equipment suppliers, pharmaceutical companies, health care IT companies, health care industry vendors, investors, entrepreneurs, and startup businesses. She also focuses on matters involving telemedicine, digital health, remote patient monitoring, and virtual care.

Rachel has considerable experience in matters involving fraud and abuse compliance, including self-referral and ant-kickback laws, corporate compliance programs, Medicare and Medicaid reimbursement, self-disclosures and overpayments, health information privacy, telehealth, health care marketing, licensing, change of ownership, enrollment, and corporate and transactional matters involving mergers, acquisitions, due diligence, joint ventures, and other strategic affiliations. She has implemented compliance programs and policies, as well as HIPAA policies and procedures for health care entities of all sizes.

Rachel also works regularly with investors, entrepreneurs, and startup businesses in the health care arena and she advises on a variety of developing legal areas, including creating and implementing scalable telemedicine programs.

While in law school, Rachel was a research assistant, the Assistant Editor for the Stetson Law Review, and a Judicial Intern for the Honorable Mark A. Pizzo, United States Magistrate Judge for the Middle District of Florida.

813.225.4158