Sign-on Letter Opportunity: Letter to CMS on Extending Certain Codes on Medicare Telehealth List Through 2024

As I mentioned a couple weeks ago, Congress decided, through the passage of the Consolidated Appropriations Act, 2023, to extend many of the telehealth flexibilities you all as emergency physicians have come to rely on over the past three years through the end of Calendar Year (CY) 2024.

While this is great news, Congress didn’t address everything. Therefore, the timeframes in which the untouched telehealth policies are will currently expire vary. For reference, found below is the handy table I had previously included that lays out when all the current telehealth policies will end.

* Many states have already let this flexibility expire.

I want to call your attention to the bolded rows and columns. The Centers for Medicare & Medicaid Services (CMS) had previously decided to add certain codes to the approved Medicare Telehealth Services List (the list of codes that can be provided and billed via telehealth in Medicare at the same rate as in-person services) temporarily during the COVID-19 public health emergency (PHE). In the latest Physician Fee Schedule (PFS) and Quality Payment Program (QPP) final reg (impacting policies for Calendar Year 2023), CMS had finalized a policy to allow some of these services to remain on this list for 151 days after the expiration of the PHE.

While the timeframe of 151 days post-PHE may seem like an odd amount of time to keep the codes on the Medicare Telehealth Services List, if you recall, the rationale behind this policy was to align the availability of these services with the flexibilities that were extended under the Consolidated Appropriations Act, 2022 (passed in March 2022). That law had extended a number of the flexibilities that had been in place during the PHE for COVID–19 for 151 days after the end of the PHE. Thus, CMS, rightly so, wanted to make sure that the telehealth policies it could control followed the same timeline that Congress had previously set.

However, to make matters a little more confusing, CMS did create another bucket of codes, those placed in “Category 3,” which CMS believes have more potential to eventually be added permanently to the Medicare Telehealth Services List. These codes, which include the Emergency Department (ED) Evaluation and Management (E/M) codes, some observation codes, and the critical care codes, follow a different timeline and are set to be removed from the list at the end of this calendar year. There is an extremely high bar to convince CMS to add these Category 3 codes permanently to the Medicare Telehealth Services List. We have to provide data and evidence to CMS (including peer reviewed literature) that shows that providing these services via telehealth adds clinical benefit and improves quality and reduces costs.

Thus, in all, there are three separate timelines, which CMS must now take action to align with the new timeframe that Congress recently included in the Consolidated Appropriations Act, 2023: the end of CY 2024.

While we could wait for CMS to align these policies in the next PFS and QPP reg—impacting payments for CY 2024—the timing doesn’t quite work. You see, the PHE is currently set to expire on April 11, 2023, and 151 days after that is September 9, 2023. However, the CY 2024 PFS and QPP final reg policies don’t become effective until January 1, 2024 (60 days after the release of the final reg, on or around November 1, 2023). Therefore, there would be a gap period (between September 9, 2023, and January 1, 2024), in which certain codes would be, at least temporarily, removed from the Medicare Telehealth Services List. This gap would create an unintended barrier to accessing vital health care services.

Since CMS cannot wait until the CY 2024 PFS and QPP reg to align the telehealth policies, ACEP and others believe that the agency should issue an interim final reg (IFR) as soon as possible to do so. Policies included in an IFR are effective immediately.

ACEP has created a sign-on letter that lays out this issue and requests that CMS issue the IFR. This is extremely important, as without CMS action, many Medicare beneficiaries who have been dependent on receiving care virtually would have trouble finding suitable alternatives to meet their needs. It would also provide more time for the clinician community (including ACEP) to gather enough evidence to meet the high bar of convincing CMS to permanently add some codes to the Medicare Telehealth Services List.

Please consider having your organization sign onto the letter by next Tuesday, January 24 using this form.

If you have questions about the letter or the issue more generally, please feel free to email me.

Until next week, this is Jeffrey saying, enjoy reading regs with your eggs!