With only two weeks remaining in the year, Congress appears poised to pass a government funding deal (the “Further Continuing Appropriations and Disaster Relief Supplemental Appropriations Act, 2025”) that includes a welcome holiday gift for health care providers and patients – an expansive health care package that would extend certain telehealth flexibilities promulgated during the COVID-19 public health emergency (“PHE”) for an additional two years. The extended telehealth flexibilities were originally set to expire on December 31, 2024. This extension would generally allow providers to continue to serve Medicare patients via telehealth consistent with the current practices.

Flexibilities Extended by the Bill

The Centers for Medicare & Medicaid Services (“CMS”) issued a number of telehealth waivers during the PHE, some of which were extended through December 31, 2024, by the 2023 Consolidated Appropriations Act (“CAA”).[i] The Congressional bill would extend those flexibilities through December 31, 2026. The flexibilities that would be extended by the bill are:

• Definition of “Originating Site”: The bill would extend the definition of “originating site” to mean any site in the U.S., including the home of an individual. An “originating site” is the location at which the telehealth eligible individual is located at the time the service is furnished via a telecommunications system.
• Definition of “Practitioner”: The bill would extend the definition of “practitioner” to also include a qualified occupational therapist, qualified physical therapist, a qualified speech-language pathologist, and a qualified audiologist. Prior to the PHE, a “practitioner” was limited to a physician assistant, nurse practitioner, clinical nurse specialist, certified registered nurse anesthetist, certified nurse-midwife, clinical social worker, clinical psychologist, and registered dietitian or nutrition professional.
• RHC and FQHC Telehealth Services: The bill would extend the authorization for Rural Health Clinics (“RHCs”) and Federally Qualified Health Centers (“FQHCs”) to provide and reimburse for telehealth services.
• In-Person Visit Requirement for Telehealth Mental Health Services: The bill would delay the reimbursement requirement for physicians and practitioners to conduct in-person exams within six months before an initial telehealth service for purposes of diagnosis, evaluation, or treatment of a mental health disorder until January 1, 2027.
• Audio-Only Telehealth: The bill would provide that telehealth services furnished using audio-only telecommunications technology will continue to be covered and reimbursable.
• Recertification of Eligibility for Hospice Care: The bill would extend the permissible use of telehealth for conducting face-to-face encounters prior to recertification of eligibility for hospice care.
• HDHP/HSA Safe Harbor for Telehealth Services: For plan years beginning between December 31, 2022 and January 1, 2027, the bill would extend the ability of health savings account-qualifying high-deductible health plans to cover telehealth services on a pre-deductible basis.

Other Notable Provisions

In addition to extending the flexibilities described above, the bill also includes the following provisions:

• Required Use of Modifiers in Certain Circumstances: The bill would direct the Secretary of the Department of Health and Human Services (“HHS”) to establish requirements for codes or modifiers by January 1, 2026, for claims for telehealth services that are furnished: (1) through a telehealth virtual platform by a physician or practitioner that contracts with an entity that owns the platform or has a payment arrangement with an entity for use of the platform or (2) incident to a physician’s or practitioner’s professional service.
• Acute Hospital Care at Home: The bill would extend hospital at home flexibilities until 2029.

Changes Under the CY 2025 Physician Fee Schedule Final Rule

CMS also recently finalized certain changes to maintain certain telehealth flexibilities within its regulatory authority in the Calendar Year 2025 Physician Fee Schedule Final Rule (“Final Rule”).[ii] The changes implemented by the Final Rule include:

• Extended Allowance of “Remote Direct Supervision”: Certain services, including most incident-to services and many diagnostic tests, must be furnished under specific minimum levels of supervision by a physician or other practitioner. When services require “direct supervision”, the supervising practitioner must be “immediately available” to furnish assistance and direction. “Direct supervision” will be defined to permit the presence and “immediate availability” of the supervising practitioner through real-time audio and visual interactive telecommunications through December 31, 2025.
  • CMS also permanently defines “direct supervision” to include “immediate availability” of the supervising practitioner through audio/video real-time communications technology (excluding audio-only) only for the following incident-to services:
    • services furnished incident to a physician or other practitioner’s service when provided by auxiliary personnel employed by the billing practitioner and working under their direct supervision, and for which the underlying HCPCS code has been assigned a professional component or technical component indicator of “5”, and
    • services described by CPT code 99211 (Office or other outpatient visit for the evaluation and management of an established patient that may not require the presence of a physician or other qualified health care professional).
• Extended Flexibility to Use Enrolled Location as “Distant Site” Address: Telehealth practitioners are permitted to bill from their currently enrolled location instead of their home address when providing telehealth services from their home through December 31, 2025.
• Revision of “Telecommunications System” Definition to Allow Permanent Use of “Audio-Only” in Certain Circumstances: CMS permanently revises the definition of “telecommunications system” to also include “two-way, real-time audio-only communication technology for any telehealth service furnished to a beneficiary in their home if the distant site physician or practitioner is technically capable of using an interactive telecommunications system as defined as multimedia communications equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication, but the patient is not capable of, or does not consent to, the use of video technology” beginning January 1, 2025.

Other notable provisions of the Final Rule include:

• New Additions to the List of Telehealth Services: While CMS did not permanently add any codes to the Medicare List of Telehealth Services, it added the following codes on a provisional basis:
  • HCPS Code G0011 (PrEP for HIV)
  • HCPS Code G0013 (PrEP for HIV)
  • HCPS Codes GCTD1 – 3 (Caregiver Training In Direct Care Strategies and Techniques)
  • HCPS Codes GCTB1 – 2 (Individual Behavior Management/Modification Caregiver Training)
  • CPT Codes 97550-97552 (Caregiver Training in Strategies To Facilitate Patient Functional Performance in the Home or Community)
  • CPT Codes 96202 – 96203 (Group Behavior Management/Modification Caregiver Training)
• No Recognition of New AMA Telemedicine Evaluation and Management (E/M) Services Codes: The American Medical Association (“AMA”) recently revised the CPT Codebook and valued seventeen new codes (9X075 – 9X091) to describe telemedicine Evaluation and Management (“E/M”) services. CMS declines recognizing and paying for the new codes because they mirror existing office/outpatient E/M codes but assigns a procedure status indicator of “I” to indicate that there is a more specific code that should be used for Medicare purposes.

Looking Forward

The extension of telehealth flexibilities under the bill and the Final Rule is a relief for many providers and their patients who rely on telehealth for medical care. Nevertheless, the piecemeal approach to telehealth waivers, and Congress’ continued reliance on only temporary extension of critical flexibilities, has created intricate compliance obligations for providers. 

FOOTNOTES

[i] For additional information on the 2023 CAA please see the following resource: Key Healthcare Provisions of the Consolidated Appropriations Act, 2023 | Healthcare Law Blog (sheppardhealthlaw.com).

[ii] 89 FR 97710 (Dec. 9, 2024).

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