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Telehealth: Medicare Moves Forward by Proposing New Telehealth Services for 2020

On July 29, the Centers for Medicare and Medicaid Services (CMS) issued its proposed 2020 Physician Fee Schedule rule, which contains new telehealth services covered under Medicare. Surprisingly, CMS did not receive any provider requests to add new telehealth services this year. Fortunately, CMS took it upon itself to propose three new codes. This article discusses the proposed new codes, explains how to submit public comments on the proposed rule, and describes how to submit requests for new telehealth services. The public comment period is open through September 27, 2019.

How Medicare Defines Telehealth Services

Under Medicare, the term “telehealth services” refers to a specific set of services practitioners normally furnish in-person, but for which CMS will make payment when they are instead furnished using interactive, real-time telecommunication technology. The Social Security Act governs what telehealth services are, and are not, covered under Medicare. Generally, there are five statutory conditions required for Medicare coverage of telehealth services:

  1. The beneficiary (patient) is located in a qualifying rural area;

  2. The beneficiary is located at one of eight types of qualifying originating sites;

  3. The services are provided by one of ten categories of distant site practitioners eligible to furnish and receive Medicare payment for telehealth services;

  4. The beneficiary and distant site practitioner communicate via an interactive audio and video telecommunications system that permits real-time communication between them; and

  5. The Current Procedural Terminology/Healthcare Common Procedure Coding System (CPT/HCPCs) code for the service itself is named on the list of covered Medicare telehealth services.

Provided the distant site practitioner complies with each of the above requirements, the telehealth service furnished via an interactive telecommunications system will substitute for an in-person encounter, and it should meet the requirements for Medicare coverage assuming other standard coverage and payment provisions are met.

How Does CMS Assess New Telehealth Services?

There is a specific process to request additions or deletions from the list of covered telehealth services. Initially, CMS assigns each proposed code to one of two categories. Category 1 is for those services similar to professional consultations, office visits, and office psychiatry services currently on the list of telehealth services. Category 2 is for those services not similar to those on the current list of telehealth services. Proposals that fall into Category 2 undergo a more exacting review, including whether the proposed service will produce demonstrated clinical benefit for patients. When submitting a proposal to request coverage of a new service/code, it is necessary to first determine in which category the service will be considered, so that the type of clinical and nonclinical support documentation CMS expects will accompany the submission.

When Does CMS Accept Requests for New Telehealth Services?

CMS accepts requests for additions or deletions to the Medicare telehealth services list until February 10th of each calendar year. This deadline aligns with the deadline for receipt of code value recommendations from the Relative Value Scale Update Committee.

What Telehealth Services Will CMS Add for 2020?

Particularly surprising was that this year, there were no requests that CMS add new codes to the telehealth services list. It is unclear why providers failed to make such requests, but CMS speculated that the vast majority of existing services that can be appropriately delivered via telehealth are reflected by codes that are already on the list. 

Despite the absence of requests, CMS proposed adding three codes to the covered Medicare telehealth service list:

  1. HCPCS code GYYY1: Office-based treatment for opioid use disorder, including development of the treatment plan, care coordination, individual therapy and group therapy and counseling; at least 70 minutes in the first calendar month.

  2. HCPCS code GYYY2: Office-based treatment for opioid use disorder, including care coordination, individual therapy and group therapy and counseling; at least 60 minutes in a subsequent calendar month.

  3. HCPCS code GYYY3: Office-based treatment for opioid use disorder, including care coordination, individual therapy and group therapy and counseling; each additional 30 minutes beyond the first 120 minutes (List separately in addition to code for primary procedure).

These three services are sufficiently similar to services already on the list of Medicare telehealth services, so CMS classified them as Category 1. Accordingly, a streamlined review process took place. Subject to public comment, these services are expected to be added to the list of Medicare telehealth services when the final rule is published, and would go into effect January 1, 2020.

CMS also noted how the SUPPORT Act statutorily removed the geographic limitations for telehealth services furnished to individuals diagnosed with a substance use disorder (SUD) for the purpose of treating the SUD or a co-occurring mental health disorder. The change also allows telehealth services for treatment of a diagnosed SUD or co-occurring mental health disorder to be furnished to individuals at any telehealth originating site (other than a renal dialysis facility), including in a patient’s home. No originating site facility fee is paid when the beneficiary’s home is the originating site. These changes became effective July 1, 2019.

How to Submit Comments on the Proposed Rule

Providers, technology companies, and entrepreneurs interested in telehealth should consider submitting comments to the proposed rule anonymously or otherwise – via electronic submission at this link. CMS is soliciting comments on the proposed rule until 5:00 p.m. on September 27, 2019. Alternatively, commenters may submit comments by mail to:

  • Regular Mail: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1715-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-1715-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.

How to Request Additional Medicare Telehealth Services 

Interested parties need not wait on Congress or CMS to act; anyone may send CMS a request to add services (HCPCS codes) to the list of covered Medicare telehealth services. This can include medical specialty societies, individual physicians or practitioners, entrepreneurs, hospitals, state and federal agencies, telehealth companies, vendors, and even patients. Requests may be submitted at any time on an ongoing basis. The requests will be consolidated and considered during the CMS rulemaking cycle.

Each request should address the following:

  • Requestor Name(s), address, and contact information.

  • The HCPCS code(s) that describes the service(s) proposed for addition or deletion to the list of Medicare telehealth services. If the requestor does not know the applicable HCPCS code, the request should include a description of services furnished during the telehealth session.

  • A description of the type(s) of medical professional(s) providing the telehealth service at the distant site.

  • A detailed discussion of the reasons the proposed service should be added to the definition of Medicare telehealth service.

  • An explanation as to why the requested service cannot be billed under the current scope of telehealth services, for example, the reason why the HCPCS codes currently on the list of Medicare telehealth services would not be appropriate for billing the service requested.

  • Evidence that supports adding the service(s) to the list on either a Category 1 or Category 2 basis as explained in the section labeled “CMS Criteria for Submitted Requests.”

Email your request to Telehealth_Review_Process@cms.hhs.gov with a subject line of “Telehealth Review Process.” Alternatively, you can mail the request to: Division of Practitioner Services, Mail Stop: C4-03-06, Centers for Medicare and Medicaid Services, 7500 Security Boulevard Baltimore, Maryland 21244-1850. Attention: Telehealth Review Process.

Conclusion

Continued expansions in Medicare reimbursement mean providers should make enhancements to telehealth programs now, both for the immediate cost savings and growing opportunities for revenue generation, to say nothing of clinical quality and patient satisfaction. We will continue to monitor CMS for any rule changes or guidance that affect or improve telehealth opportunities.

© 2019 Foley & Lardner LLP

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About this Author

Emily Wein Health Care Lawyer
Of Counsel

Emily H. Wein is of counsel and a health care lawyer with Foley & Lardner LLP, and member of the firm’s national Telemedicine & Digital Health Industry Team. Emily understands and identifies with the business and strategic goals of virtual care and digital health companies. She delivers practical legal guidance molded to accomplish each individual client’s unique operational goals. Emily works with a diverse bench of organizations – including large interdisciplinary hospital systems, skilled nursing facilities, multi-state clinical practices, and fast-moving entrepreneurs. Emily’s...

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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. 

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