Source by: Arnold & Porter
by Monique Nolan , Amanda Cassidy, MPP and Hannah Leibson
Throughout the COVID-19 public health emergency (PHE), the Centers for Medicare & Medicaid Services (CMS) used a combination of emergency authority waivers, regulations, enforcement discretion, guidance, and reliance on new legislation to provide broad flexibilities under the Medicare and Medicaid programs. With the expiration of the PHE on May 11, 2023, health care providers should be aware of major changes that are in store regarding reimbursement flexibilities related to Medicare telehealth and other types of remote and virtual care.
An area of significant impact is Medicare telehealth services under Section 1834(m) of the Social Security Act, which ordinarily imposes strict requirements for the delivery of such services. During the PHE, CMS exercised various waiver and statutory authorities to remove certain geographic and originating site restrictions, as well as restrictions on who may furnish telehealth services. The agency also allowed for certain telehealth services to be furnished via audio-only communication technology. Altogether, this paved the way for a new landscape of relaxed telehealth flexibilities over the last three years.
Additionally, the COVID-19 PHE was the impetus for new and/or temporary policies by CMS to provide alternatives to face-to-face and in-person encounters between vulnerable Medicare beneficiaries and health care professionals (and each other), such as through remote patient monitoring (RPM), virtual supervision, and the relaxing of face-to-face service requirements. Initially born out of necessity, health providers and beneficiaries have become accustomed to these policies and this new way of furnishing care.
With the end of the PHE, Congress must act if some of these flexibilities are to become permanent fixtures of the Medicare program. At the same time, CMS must grapple with what it can do under its existing authorities, such as the Section 1834(m) Medicare telehealth provision, particularly in light of lessons learned during the PHE. Indeed, the PHE has forced the agency to reevaluate what services are appropriate for telehealth, particularly in the area of behavioral health services which lends itself to virtual telehealth encounters as compared to other services. Additionally, while CMS adopted certain policies on a temporary basis during the PHE, CMS has signaled that it may be open to making such policies permanent. For example, despite its current plans to return to the pre-PHE direct supervision rules, CMS has previously solicited comments about whether to make the temporary exception (direct supervision through virtual presence) permanent or to apply such policies to a subset of services, and sought additional data or evidence that might justify such a change. Accordingly, this is a key time and opportunity for stakeholders and other interested parties to weigh in on these issues, such as in the upcoming Physician Fee Schedule rulemaking cycle for calendar year 2024, to inform future policy development and, where applicable, potentially persuade the agency to restore or retain certain PHE-related exceptions or flexibilities. As several fraud and abuse waivers expire, adherence to the adjusted policies is critical.
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