As mindsets pivoted to a post-pandemic life, telehealth advocates petitioned CMS to embrace telehealth as a permanent care option, and CMS responded with regulatory action at the end of 2021.

During the Covid-19 Pandemic, telehealth usage surged as patients and providers turned to it as a safer care alternative. McKinsey estimated telehealth claim volumes reached 80 times pre-pandemic levels at its peak, ultimately stabilizing at 38 times pre-pandemic levels by early 2021.¹ This increase was mostly driven by CMS’ waivers and relaxation of regulatory constraints for telehealth reimbursement. But, the temporary nature of both left questions regarding telehealth’s future.

In December 2021, CMS issued new regulations which, collectively, steer telehealth toward becoming a part of the telebehavioral health toolkit accepted by Medicare post-pandemic. In the CY2021 Physician Fee Schedule Final Rule² , further discussed here, CMS broadly expanded access to telebehavioral health services. Specifically, Medicare permanently authorized payment for telehealth services furnished “for purposes of diagnosis, evaluation or treatment of a mental health disorder” under the following relaxed criteria:³

• First, CMS made the patient’s home⁴ a qualifying originating site for telehealth encounters done for diagnosis, evaluation or treatment of a mental health disorder, provided that such services were preceded and followed by a qualifying inperson visit

• Second, CMS waived geographic restrictions on Medicare’s payment for such services.⁵ Now, a patient’s home may serve as an originating site for telebehavioral services, even when the home isn’t in a qualifying rural zip code.

• Third, CMS permanently allowed audioonly visits for the evaluation and treatment of mental health disorders when: (1) the patient’s home is the originating site, and (2) the telehealth provider has audio-visual technical capabilities for the encounter, but the patient either is incapable of having or refuses to consent to a video encounter.⁶ (For services other than behavioral health counseling services, CMS is still refusing to pay for audio-only encounters.⁷)

Collectively, these changes are likely to significantly broaden access to behavioral health care for Medicare beneficiaries facing increased challenges accessing care. However, at the same time, one can also expect increased scrutiny and enforcement action from the Office of Inspector General (“OIG”) to prevent fraud, waste and abuse in telehealth. The Department of Justice and OIG have already increased anti-fraud enforcement measures in the telehealth industry over the past few years, and this is likely to continue as telehealth becomes a permanent part of behavioral health services. As recently as September 2021, the OIG specifically evaluated telehealth’s use in providing behavioral health services to Medicaid enrollees.⁸ In its report⁹ , the OIG acknowledged telehealth’s value during the pandemic, but also highlighted the importance of (i) ensuring payers can distinguish between telehealth and inperson services; (ii) evaluating the effects of telehealth on access, cost, and quality of behavioral health services; and (iii) ongoing monitoring for fraud, waste, and abuse.

Based on these comments, providers should consider acting defensively in building out telebehavioral health services and adopt processes supportive of quality, robust documentation, and furthering the Triple Aims¹⁰ of improving the patient care experience (including quality and satisfaction); improving the health of populations; and reducing the per capita cost of health care.

FOOTNOTES

1 See Oleg Bestsenney et. al, Telehealth: A Quarter-Trillion Dollar Post-Covid-19 Reality? (Updated July 9, 2021) available at: https://www.mckinsey.com/industries/ healthcare-systems-and-services/our-insights/telehealth-a-quarter-trillion-dollar-post-covid-19-reality.

2 86 Fed. Reg. 64996 (Nov. 19, 2021) available here

³Telehealth services must meet the conditions in 42 C.F.R. §414.65 and §410.78, as well as state requirements, to lawfully seek Medicare reimbursement.

4 A patient’s “home” may include their residence, a temporary residence (e.g. hotel, shelter), or a nearby location where the patient goes for privacy or other reasons.

5 86 Fed. Reg. 65057 (Nov. 19, 2021) (CMS noted a patient’s home does not need have to be located in a qualifying location provided by 41 C.F.R. §410.78(b)(4) (i.e. a rural health professional shortage area)).

6 86 Fed. Reg. 65057 (Nov. 19, 2021).

7 CMS justified limiting phone-only consultations to mental health services primarily involving verbal conversation between the patient and provider by noting that visualization of the patient is less necessary for such services, but important for others.

8 See Opportunities Exist To Strengthen Evaluation and Oversight of Telehealth for Behavioral Health in Medicaid (OEI-2-19-00401) (Sept. 20, 2021) available at https://oig.hhs.gov/oei/reports/OEI-02-19-00401.asp

9 Id.

10 See The IHI Triple Aim, Institute for Health Improvement, available at http://www.ihi.org/Engage/Initiatives/TripleAim/Pages/default.aspx.