Earlier this week, the Centers for Medicare & Medicaid Services (CMS) finalized a rule implementing a provision of the Affordable Care Act (ACA) that requires a Medicaid enrollee seeking coverage for home health services to first meet face-to-face with a practitioner.  The final rule confirms that the face-to-face encounter requirement “may occur through telehealth, as implemented by the State.” 42 C.F.R. § 440.70(f)(6).

Section 6407 of the ACA added the requirement that a patient seeking Medicaid coverage for home health services must meet face-to-face with his or her practitioner prior to the practitioner authorizing the services.  This statutory provision expressly states that the face-to-face encounter can occur “through use of telehealth.”

In the final rulemaking, CMS codifies this statutory provision into its regulations, including the allowance for the use of telehealth. In addition, in the preamble, CMS provides insight into what it means when authorizing the use of “telehealth.” Specifically, CMS explains that the telehealth option does not “allow telephone calls or emails to replace the face-to-face encounter,” but rather the face-to-face requirement can only be met through “a telehealth delivery model that is recognized by the state as a [practitioner] encounter under its approved state plan.” However, it is not clear whether telehealth communication will actually be available for many Medicaid home health patients. Most Medicaid enrollees do not yet have access to a video-streaming delivery model through which they can meet with their physicians, and it seems unlikely that home health providers will create this infrastructure in the short-term.

CMS’s responses to commenters in the preamble indicate that the agency believes telehealth technology can be used to facilitate and improve access to home health services.  CMS cites the telehealth encounter option on several occasions in response to commenters’ concerns about the burdens of the new rule. CMS also “encourages” States to work with home health providers “to incorporate the use of telehealth to meet the face-to-face requirement in creative and flexible ways to account for individual circumstances.” And CMS expects “that care delivered using various technologies will lead to good outcomes and meet the needs of the individual while adhering to privacy requirements.”