CMS issued the CY 2022 Medicare Physician Fee Schedule Final Rule on November 2, 2021, to include some minor expansion of coverage for telehealth services. Importantly, the general statutory coverage restrictions related to rural areas and defined originating sites will again be in place following the end of the Public Health Emergency (“PHE”) unless Congress acts to amend the relevant sections of the Social Security Act.

New Telehealth Services

For CY 2022, CMS did not add any new telehealth services on a permanent (Category 1 or 2) basis. CMS added four (4) new services on a temporary Category 3 basis: 4 CPT codes that represent cardiac and intensive cardiac rehabilitation services. Category 3 services are only covered as telehealth services during the PHE and CMS stated it will continue to cover Category 3 services through the end of CY 2023.

Behavioral Telehealth Services

CMS implemented statutory changes from the 2021 Consolidated Appropriations Act to remove rural geographic restrictions and cover the home as a permissible originating site for telehealth services furnished for the purposes of diagnosis, evaluation or treatment of a mental health disorder. This expands coverage implemented in 2019 that permitted treatment of substance use disorders (“SUDs”) furnished through telehealth, without geographic restriction, and included treatment for co-occurring mental health disorders.

For behavioral telehealth services to be covered, an initial visit must occur in-person six (6) months before the first telehealth visit. Further, the Medicare beneficiary must have an in-person visit at least every 12 months in order to continue telehealth services coverage unless the “physician or practitioner and the patient agree that the risks and burdens associated with an in-person service outweigh the benefits associated with furnishing the in-person item or service.” (See amended 42 CFR 410.78). The reason for this decision needs to be documented in the medical record.

The removal of the geographic restriction in relation to these behavioral health services underscores the lack of any such statutory modification, to date, with respect to most other telehealth services. Although the current PHE waiver of the originating site requirements remains in place, once the Federal PHE comes to an end the more restrictive geographic limitations will once again be effective and will once again present a significant barrier to the provision of most telehealth services in non-rural settings.

Audio-Only Communications

CMS is amending the current definition of “interactive telecommunications system” for telehealth services to include audio-only communications technology when used for telehealth services for the diagnosis, evaluation, or treatment of mental health disorders furnished to established patients in their homes under certain circumstances. Further, CMS is limiting the use of an audio-only interactive telecommunications system to mental health services furnished by practitioners who have the capability to furnish two-way, audio/video communications, but where the beneficiary is not capable of or does not consent to, the use of two-way, audio/video technology. A new modifier will be used to identify these services. This follows a recent CMS change creating a new Place of Service code (POS 10) to report behavioral telehealth services.

Audio-Only Telehealth Services Audit

Noridian Healthcare Solutions, LLC, working as the Supplemental Medical Review Contractor (“SMRC”) for CMS, recently announced it is conducting post-payment claims review for Medicare audio-only telehealth services billed on dates of service from March 6, 2020, through June 1, 2021. The announcement can be found on the Noridian website here and includes the reasons for the review, documentation that will be requested in the Additional Documentation Request letter, and resources providers and suppliers may wish to consult when submitting claims. The announcement also states that applicable waivers and flexibilities established during the PHE will be utilized during claim review.

Practical Takeaways

  • Current telehealth services added to the coverage list temporarily during the PHE will continue to be covered through the end of CY 2023.
  • Behavioral/mental health services will be covered permanently as telehealth services, with additional requirements, without geographic restriction and the patient’s home is a permissible originating site.
  • Permanent removal of the rural geographic restriction and originating site restriction for all telehealth services will require a statutory amendment by Congress.
  • Noridian, as the SMRC, will begin auditing paid claims for audio-only telehealth services billed between March 6, 2020, and June 1, 2021.