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Volume XII, Number 177

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Medicare Telehealth and Substance Use Disorder Treatment FAQs: New CMS Reimbursement Requirements

In the 12-month period starting in April 2021, over 100,000 people have died from drug overdoses, a 28.5% increase from the same period the year before. While the opioid crisis has been a declared public health emergency (PHE) since October 26, 2017, overdose deaths remain at an all-time high and have only been exacerbated by the COVID-19 pandemic. To combat this epidemic, physicians and other health professionals have called for additional telehealth flexibilities to allow for increased access to care for patients with substance use disorders (SUD), including opioid use disorder (OUD).

The Centers for Medicare & Medicaid Services (CMS) has responded to these calls by continuing its efforts to address this epidemic and expand access to mental/behavioral health in its new 2022 Physician Fee Schedule Final Rule.

The New Rule and the SUPPORT Act

Under the new rule, Medicare extended the time increments between in-person visits for patients receiving telehealth-based mental health services when the patient is located at home, among other requirements. (Please review our recent FAQs for more information on this change.) While this change impacts telehealth service furnished for purposes of diagnosis, evaluation, or treatment of a mental health disorder, it carves out telehealth treatment of a patient with a diagnosed SUD or co-occurring mental health disorder, which is separately addressed in the SUPPORT Act.

Effective on July 1, 2019, the SUPPORT Act statutorily removed the geographic limitations for telehealth services furnished to patients who with a diagnosed SUD or co-occurring mental health disorder, if the telehealth service is used to treat the SUD or co-occurring mental health disorder. The Act also removed telehealth originating site restrictions, which enabled patients to receive SUD treatment at any location, including the patient’s home. However, these flexibilities only apply to SUD treatment for patients with an already diagnosed SUD—it does not apply to the initial diagnosis of the underlying condition. For the initial SUD diagnosis, the provider would likely need to bill an evaluation and management (E/M) code, which is subject to Medicare’s usual statutory restrictions (e.g., geographic location, originating site, etc.).

Audio-Only Counseling and Therapy Services at OTPs

Under the new rule, Medicare will extended the ability of Opioid Treatment Programs (OTPs) to provide therapy and counseling services via audio-only telephone calls in certain instances. An OTP is a federally-certified program or practitioner who treats OUD with an “opioid agonist treatment medication,” such as methadone or buprenorphine, and is commonly referred to as a “narcotic treatment program” or “methadone clinic.” Unlike office-based opioid treatment (OBOT), OTPs can prescribe, dispense, and administer methadone on site. CMS added audio-only interaction to promote access, improve beneficiary choice, and provide effective and sustainable treatment for the particularly vulnerable OUD patient population.

Provided all other applicable requirements are met, OTPs can utilize audio-only telephone calls for counseling and therapy services when audio-video technology is “not available to the beneficiary,” which is defined to include the following instances:

  1. Circumstances in which the beneficiary is not capable of using audio-video communication, or

  2. When the beneficiary has not consented to the use of devices that permit a two-way, audio-video interaction.

While CMS will reimburse certain audio-only telephone calls, providers still need to adhere to state law, which may be more restrictive on the use of the audio-only telephone modality. For example, Florida’s telehealth statute does not allow audio-only telephone calls, so a provider delivering telehealth services to Florida patients will need to adhere to this more restrictive modality requirement.

What’s next?

The CMS policy changes will take effect for Medicare beneficiaries on January 1, 2022 through the end of CY 2023, or when the public health emergency ends.

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 10
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About this Author

Jessica M. Boubker Law Graduate Foley & Lardner Boston
Law Graduate

Jessa Boubker is a law graduate in the Business Law Department at Foley & Lardner LLP. She is based in the Boston office where she is a member of the Health Care Practice Group. Jessa is not admitted to practice law in any state.

During law school, Jessa was the Editor-in-Chief of the American Journal of Law & Medicine, the country’s leading health law journal, where she was responsible for article submissions, selection, and editing, and oversaw the 2021 Annual Symposium: Legal Innovations in Response to Public Health...

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Sunny Levine Health Care Lawyer Foley Lardner
Associate

Sunny J. Levine is a health care lawyer with Foley & Lardner LLP, and member of the firm’s Telemedicine & Digital Health and Health Care Industry Teams working with hospitals and health systems, physician practice groups, and technology companies across the country. Sunny’s practice focuses on federal and state regulatory compliance and business issues in the health care industry. She also works with companies offering highly regulated consumer products, such as medical marijuana and alcohol beverages.

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Christopher J. Donovan, Foley Lardner, Partner, Litigation Lawyer
Partner

Christopher J. Donovan is a partner with Foley & Lardner LLP. He focuses his practice on advising companies and their investors and lenders in mergers and acquisitions, recapitalizations, buyouts and restructurings as well as advising on a broad range of commercial arrangements. Mr. Donovan has particular experience in the health service, particularly post-acute, and life sciences sectors. He has a unique blend of deep regulatory as well as corporate and finance experience to bring to a transaction as a result of his consummating dozens of health and life science...

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Alexis Bortniker, Health Care Attorney, Foley Lardner Law Firm
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Alexis Bortniker is a Partner and health care lawyer with Foley & Lardner LLP. Her practice focuses on transactional and regulatory matters with an emphasis on counseling health systems, hospitals, and other providers in managed care and physician contracting. Ms. Bortniker is a member of the firm’s Health Care Industry Team.

Previously, Ms. Bortniker was an associate with Choate Hall & Stewart LLP where she gained experience working directly with health care organizations on regulatory and corporate compliance issues, including the...

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Hannah E. Zaitlin, Foley, health care providers lawyer, mergers acquisitions attorney
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Hannah E. Zaitlin is an associate and health care business lawyer with Foley & Lardner LLP. Her practice focuses on advising health care providers and companies on mergers, acquisitions and affiliations, entity formation and restructurings, corporate and non-profit governance, debt and equity financings, and commercial contracting. She frequently counsels clients on a range of health care compliance and regulatory matters, including state and federal fraud and abuse laws, HIPAA, professional and facility licensure, and payor/reimbursement issues. Ms. Zaitlin is a...

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