Health Policy Corner: COVID-19 Telehealth Flexibilities: What to Expect Going Forward

By Jeff Davis | ACEP Director of Regulatory Affairs

As you all know, the federal government and states across the country have instituted numerous telehealth flexibilities during the COVID-19 public health emergency (PHE) that have greatly enhanced your ability to provide emergency telehealth services. Of all the waivers and changes to telehealth rules, some are able to be “controlled” by federal agencies like the Centers for Medicare & Medicaid Services (CMS)—meaning that they can extend them or make them permanent without congressional action. However, other major telehealth flexibilities are set to expire sometime after the PHE ends, and in these cases, Congress, individual states, or private payors need to take additional action to change the expiration date. Importantly, Congress recently passed the Consolidated Appropriations Act of 2023, which extended many of the telehealth flexibilities it controls through December 31, 2024 (Congress had initially extended these flexibilities for 151 days after the PHE ended).

So, let’s break out each of the major telehealth policies that affect you and your patients and what actions the American College of Emergency Physicians (ACEP) has taken to advocate for continued telehealth flexibilities, and our ongoing advocacy to make these policies permanent and ensure that telehealth is here to stay.

Policies Controlled by the Federal Agencies

Codes on the Approved List of Telehealth Services

The major issue that CMS “controls” relates to what telehealth services you can continue providing to Medicare patients after the PHE ends. CMS maintains a list of approved services (usually updated annually) that you can provide via telehealth to Medicare beneficiaries and receive full reimbursement at the same rates as in-person services.

During the PHE, CMS temporarily included the emergency department (ED) evaluation & management (E/M) services on this list, as well as critical care and observation services. Having the ability to bill for these services—which encompass the vast majority of the services that you as emergency physicians deliver—provided a consistent reimbursement mechanism that was necessary to help stand up your ED telehealth programs.

CMS, through previous rulemaking, decided to continue including all the ED E/M services, the critical care services, and some observation services on the list of approved telehealth services through the end of calendar year (CY) 2023. However, CMS does believe that it still needs to see more data and evidence about the benefits of providing these services via telehealth in order to permanently add these codes to the list of approved Medicare telehealth services. There is a chance that CMS will issue a regulation that will keep these codes on the list of approved Medicare telehealth services longer than CY 2023 to align with recent Congressional action that extended the Medicare telehealth waivers through the end of CY 2024.

ACEP Action: ACEP is currently gathering data and evidence to try to convince CMS to continue including some of these emergency services on the list of approved Medicare services. ACEP plans to draft a letter to CMS by February 10, 2023, to include such evidence and make a compelling argument to the agency. If CMS agrees with ACEP’s recommendations, it will include a policy in the CY 2024 Physician Fee Schedule and Quality Payment Program (QPP) rule to permanently add certain emergency medicine telehealth codes to the list of approved telehealth services.

Important Notes: It is important to note that you can still bill the office and outpatient E/M codes when you deliver telehealth services—even if the ED E/M codes are not permanently added to the list of approved telehealth services. In fact, before the PHE began, some clinicians were already billing these codes when providing telehealth services from the ED. Furthermore, there were some other codes that CMS has already decided to keep on the list for an additional 151 days after the PHE—and may keep them on the list even longer to align the Consolidated Appropriations Act of 2023. Finally, please remember that this billing policy only applies to Medicare—individual states may have their own policies regarding Medicaid telehealth reimbursement and private payors also have their own policies as well.

Supervision Requirements
During the PHE, CMS temporarily modified the direct supervision requirement to allow for the virtual presence of the supervising physician using interactive audio/video real-time communications technology. CMS has extended this policy through the end of the calendar year in which the PHE ends. In addition, CMS permanently extended a flexibility granted during the PHE that allows teaching physicians to use interactive, real-time audio/video to interact with residents to meet the supervision requirement. However, CMS limits this permanent policy to residency training sites in rural areas. In other words, once the PHE ends, only teaching physicians in rural areas will be able to use telehealth to supervise residents.

Opioid Use Disorder (OUD) Telehealth Policies
The Drug Enforcement Administration (DEA) adopted protocols during the PHE to allow DEA-registered practitioners to prescribe controlled substances to their patients without having to interact in-person with their patients. Under the DEA’s policy (which became effective on March 31, 2020), authorized practitioners can prescribe buprenorphine over the telephone to new or existing patients with opioid use disorder (OUD) without having to first conduct an examination of the patient in person or via telehealth.

The DEA plans to issue two regulations regarding the use of telehealth to prescribe controlled substances. One rule relates to the Ryan Haight Online Pharmacy Consumer Protection Act of 2008. The Act required an in-person medical evaluation as a prerequisite to prescribing or dispensing controlled substances, except in the case of practitioners engaged in the practice of telemedicine. The definition of the ‘‘practice of telemedicine’’ includes seven distinct categories that involve circumstances in which the clinician might be unable to satisfy the Act’s in-person medical evaluation requirement yet nonetheless has sufficient medical information to prescribe a controlled substance. One specific category within the Act’s definition of the ‘‘practice of telemedicine’’ includes a practitioner who has obtained a special registration from the DEA. However, the DEA must issue regulations to effectuate this special registration provisions. This proposed rule would permit such a special registration. The other rule would clarify the ability of clinicians with X-waivers to prescribe buprenorphine to patients with OUD via an audio-only encounter (i.e., by telephone).

Both rules are being reviewed by the Office of Management and Budget within the White House, but it is unclear when they will be issued.

On December 13, 2022, the Substance Abuse and Mental Health Services Administration (SAMHSA) issued a proposed rule that proposes to make permanent some of the flexibilities provided as a result of the COVID-19 pandemic. Specifically, the proposed rule permanently allows practitioners in Opioid Treatment Programs (OTPs) to initiate buprenorphine via audio-only or audio-visual telehealth technology. It is important to note that this telehealth policy only applies to clinicians in OTPs, and the DEA still needs to issue its regulations to allow for clinicians outside of OTPs to initiate buprenorphine via telehealth permanently. SAMHSA states that the policies would go into effect 60 days after the issuance of a final rule, and the compliance deadline will be 6 months after that.

Emergency Medical Treatment and Labor Act (EMTALA)
Historically, the medical screening exam (MSE), a key component of EMTALA, was conducted in-person. During the PHE, CMS clarified that MSEs can be conducted via telehealth and that it does NOT require a waiver to continue that policy past the end of the PHE. Thus, even after the PHE ends, you can continue to use telehealth to provide the MSE in an effort to preserve staff and keep both clinicians and patients safe.

Telehealth Flexibilities Controlled by Congress and States

Unfortunately, there are numerous telehealth flexibilities that federal agencies do not have the authority to continue to extend or make permanent. In these cases, Congress and/or individual states and private payors need to take action!

Medicare “Geographic” and “Originating Site” Requirements
The policy question of where you and your Medicare patient must be located to deliver and receive telehealth services has garnered the most attention. Under current law, Medicare can only cover and reimburse for telehealth services that are performed in rural areas of the country—not urban areas (the “geographic” restriction). Further, Medicare beneficiaries must travel to certain health care facilities such as a physician’s office, skilled nursing facility, or hospital for the visit (the “originating site” requirement). They can’t receive telehealth services in their homes (although there are a few exceptions).

During the PHE, CMS was able to use a special waiver authority (called 1135 waiver authority) that it has during emergencies to waive the geographic and originating site restrictions. Thus, during the PHE, telehealth services can be provided in all areas (not just rural), and Medicare beneficiaries can receive these services from any location, including their homes.

The temporary removal of both these restrictions has truly been a game-changer in terms of expanding the use of telehealth services. However, once the PHE ends, so does CMS’ specific authority to waive the requirements. For these restrictions to be permanently eliminated, Congress must intervene.

Congress at first extended the geographic and originating site waivers for a 151-day period (around five months) that begins the day the PHE ends—but then recently extended the waivers even further through the end of CY 2024 in the Consolidated Appropriations Act of 2023. In the long term, ACEP continues to advocate for the permanent elimination of the geographic and originating site requirements.

Licensing
Currently, there are regulatory barriers that restrict the ability for physicians to get licensed and credentialed in multiple states so they can provide telehealth services to patients across state lines. During the PHE, CMS issued a temporary waiver to allow physicians who are licensed in one state to provide services to a patient another state. This waiver only applies to Medicare and Medicaid patients. Further, in order for the waiver to be effective, the state where the physician is performing the telehealth service must also waive its licensure requirements.

CMS does not have the legal authority to extend past the end of the PHE. States must act and institute their own policies that allow physicians to see patients across state lines. While many states have allowed this flexibility during the PHE, it’s not clear whether they will continue doing so once the PHE ends.

HIPAA Waivers
To be compliant with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), only certain types of telecommunications systems can be used to provide telehealth services. However, to make it easier to reach patients during the PHE, the Office of Civil Rights within HHS temporarily waived the enforcement of HIPAA to allow for other types of technologies to be used, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, or Skype. This waiver only applies during the PHE and will expire once the PHE ends.

Medicare Beneficiary Cost-sharing
Under current law, cost-sharing by Medicare beneficiaries for telehealth services is the same as if the services are performed in-person. You as physicians are not permitted to waive cost-sharing for specific beneficiaries, as it is a potential violation of the federal anti-kickback statute. The Office of the Inspector General within HHS waived this requirement during the PHE, providing health care professionals with the flexibility to reduce or waive cost-sharing for telehealth visits paid by federal health care programs.

Mental Health Services
Congress has allowed clinicians to provide mental health services to Medicare beneficiaries through telehealth from the comfort of the patient’s own home. However, this flexibility came with “in-person” requirements. Specifically, a clinician must see the patient in-person within 6 months prior to the initial telehealth service and within 12 months after the telehealth service is delivered.

This in-person requirement has received criticism from the mental health community, and Congress has delayed this requirement through the end of CY 2024.

What Does this Mean for You?

*Will likely be extended longer by CMS given that Congress has extended many of the telehealth waivers through the end of CY 2024.

There are a lot of moving parts here! The PHE is currently set to end on January 11, 2023, but will likely be extended again for another 90 days. Let’s say the PHE ends on April 11, 2023 (90 days after the current PHE expiration date). You will still be able to provide ED E/M, critical care, and some observation services via telehealth to Medicare beneficiaries through the end of 2023 (but that could be extended!). After those codes are removed from the list, you won’t be able to bill for those services any longer, but you are still allowed to bill office and outpatient E/M codes which are permanently on the list of approved telehealth services.

HOWEVER, although you are allowed to continue billing the ED E/M, critical care, and some observation services through at least December 31, 2023 (and perhaps longer), your ability to provide these emergency telehealth services will be limited going forward. Once the PHE ends, you won’t be able to provide telehealth services to a patient in another state. You won’t be able to use every-day applications such as Facetime and Skype to provide telehealth services. You won’t be able to provide cheaper services to certain Medicare patients in need by deciding not to collect their co-payments, coinsurance, and/or deductibles.

Then, starting on January 1, 2025, Medicare telehealth will return to a rural-only benefit, so you won’t be able to provide these services in urban areas. Your Medicare patient must come into an originating site—like a hospital—to receive these services and can no longer receive a telehealth service from their home.

All in all, the telehealth landscape is still in flux, since we do not know exactly when the COVID-19 PHE will end, and CMS will more than likely issue new regulations to align its telehealth policies with those included in the Consolidated Appropriations Act of 2023. In other words, although the ED E/M codes, some observation codes, and other codes are currently set to be removed from the list of telehealth services at the end of CY 2023, CMS may decide to keep these codes on the list until at least the end of CY 2024 to better align with Congress’ extension of the Medicare originating site and geographic restriction waivers.