March 2, 2021

Volume XI, Number 61

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March 01, 2021

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Telehealth Reimbursement Continues to Expand for Medicare and Medicaid

Last week, the Centers for Medicare and Medicaid Services (CMS) announced additional waivers of limitations on Medicare reimbursement of telehealth services and updated its summary of COVID-19 blanket waivers. We’ve previously blogged about actions by CMS and other federal and state agencies to increase access to and encourage utilization of telehealth services during the COVID-19 pandemic through loosening of restrictions on telehealth reimbursement (see here and here). CMS is now taking additional steps to further these goals. Below is a summary of the major changes that CMS announced last week.

The first major change is that CMS is waiving the requirement regarding the types of practitioners who may be reimbursed by Medicare for telehealth services. Current law provides that only specific practitioners may bill Medicare for telehealth services, which leaves other types of practitioners, like physical therapists and occupational therapists, no opportunity to provide reimbursable telehealth services. CMS is waiving this statutory provision in accordance with its authority under Section 1135 of the Social Security Act and will now be allowing any type of practitioner to bill Medicare for telehealth services.

Second, CMS is allowing some telehealth services to be provided via audio only, versus through both audio and video, though it is still very limited. Until now, current law (which CMS had not previously waived) required an “interactive telecommunications system” to provide telehealth services. The term is not defined by statute but rather by CMS’s regulations, which require both audio and video components. CMS is now permitting reimbursement for audio-only services for (1) audio-only telephone evaluation and management services; and (2) behavioral health counseling and educational services.  A copy of the codes can be found here. However, despite CMS touting that it now reimburses for audio-only services, this announcement does not mean that all telehealth services can be provided via audio only. To the contrary, CMS’s guidance document states that all “other services included on the Medicare telehealth services list must be furnished using, at a minimum, audio and video equipment.”

CMS also announced that it is increasing reimbursement for telehealth services to be more in line with reimbursement for in-person services. These payment increases are retroactive to March 1, 2020. In addition, CMS is adding new telehealth services to its list of reimbursable Medicare services on a sub-regulatory basis – rather than through formal rulemaking – to “speed up the process.”

In addition to these changes for Medicare reimbursement, CMS has also been approving waivers by state Medicaid and CHIP programs to loosen reimbursement restrictions during the public health emergency, particularly for telehealth. As we’ve previously discussed on the blog, state governments are also continuing to take action to increase reimbursement for telehealth services.  One recent example is Connecticut, whose governor recently issued an executive order that expands the state Medicaid program’s definition of “telehealth” to include audio-only telephone visits.

The use of telehealth has been rapidly expanding in recent weeks, and we expect the trend to continue for the foreseeable future, even after the pandemic has ended. We will continue to watch and report on developments as they unfold.

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©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume X, Number 127
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About this Author

Sarah Beth S. Kuyers, Mintz Levin, nonprofit affiliation lawyer, health care systems attorney
Associate

Sarah Beth’s practice involves a variety of regulatory, transactional, and enforcement defense matters for clinical laboratories, hospitals, pharmacies, insurers, and other health care clients.

Sarah Beth routinely advises clients on a wide variety of federal and state health care regulatory issues, including anti-kickback and self-referral laws, licensure and scope of practice rules, telemedicine, certificate of need applications, food and drug law, and HIPAA compliance. She also handles licensure and regulatory filings for clinical laboratories and other health care providers....

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Ellen L. Janos, Health care attorney, mintz levin law firm,Digital Health PBMs & Pharmacies Hospitals & Health Systems Post-Acute & Long-Term Care Retail & Urgent Care Physician Organizations
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Ellen utilizes her in-depth knowledge of health care regulation to assist clients with government audits and investigations, M&A and financing transactions, and corporate compliance activities. She also provides strategic advice to traditional health care providers, investors, and start-ups on telehealth initiatives as well as the traditional practice of medicine across multiple states. Ellen often comments on developments in telehealth, HIPAA, and the corporate practice of medicine. As an assistant attorney general for the Commonwealth of Massachusetts, Ellen represented state...

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