In our December 7, 2020 Blog Post, “Permanent Expansion of Medicare Telehealth Services,” we discussed the 2021 Medicare Physician Fee Schedule Final Rule (the “Final Rule”) and the regulatory changes made therein by the Centers for Medicare and Medicaid Services (“CMS”) to expand Medicare telehealth coverage within the confines of existing Medicare statutory law.  The Final Rule was first posted on December 2, 2020 and was formally published in the Federal Register on December 28, 2020.

In amending the Medicare regulations within the Final Rule, CMS wrote that without Congressional action, it was difficult for CMS to make permanent the regulatory telehealth waivers that the Trump Administration and CMS implemented at the outset of the current COVID-19 public health emergency (the “Pandemic”).  For example, in the Final Rule, CMS highlighted the need for Congressional action to (i) roll back the geographic limitations that require Medicare beneficiaries to leave their homes to receive telehealth services, and (ii) make permanent Medicare coverage for audio-only telehealth services.

As described below, it appears that Congress listened to CMS’ request for help.

The Permanency for Audio-Only Telehealth Act

On December 18, 2020, Congressmen Jason Smith and Tony Cardenas introduced the Permanency for Audio-Only Telehealth Act (the “Act”) a new telehealth bill that would allow CMS to reimburse Medicare providers for certain audio-only telehealth visits. Joining more than a dozen telehealth bills that are currently before Congress to make permanent much of the temporary/emergency regulatory flexibility that was first afforded by CMS to the coverage and reimbursement of telehealth services under the Medicare Program at the outset of the Pandemic (See, “Medicare Telemedicine Healthcare Provider Fact Sheet” dated March 17, 2020), the Act is designed to permanently remove those technological and geographic restrictions that, amongst other things, have inhibited the provision of telemedicine services in rural areas where a lack of adequate broadband connectivity to support audio-visual telemedicine technology can be a significant impediment to the use and expansion of telehealth technology.

Current Medicare Telehealth Coverage Rules

Prior to the provision of regulatory flexibility, the Medicare program would only pay for telehealth services when the services entailed the use of an interactive audio and video telecommunications system that permitted communication between the medical professional’s location and the Medicare beneficiary’s location. In addition, the Medicare telehealth coverage rules required that the Medicare beneficiary be located in a clinic, hospital, or certain other types of medical facilities, all in a designated rural area, while receiving telehealth services.  In short, the Medicare program would not cover a telemedicine visit if the patient was at home – except in the case of a Medicare beneficiary with co-occurring substance abuse and mental health disorders.

The Act: Telehealth at Home and on the Phone

If signed into law, the Act would require the Medicare program to cover and reimburse providers for evaluation and management services and mental and behavioral health services when provided using an audio-only telehealth platform – no video required.  In addition, the Act would also remove geographic restrictions and allow Medicare beneficiaries to receive Medicare-covered telehealth services from their home – no trips to a healthcare facility required.  Finally, the Act would allow the Secretary of the U.S. Department of Health and Human Services to add medical services for audio-only telehealth coverage.

It’s a Matter of Equity

Supporters of the Act have praised the Act as a solution to the technological barriers that have inhibited the wholesale adoption of telehealth in rural areas where telehealth technology, resources, and supporting infrastructure are often in short supply.  For example, as quoted in Congressman Smith’s December 18, 202o announcement regarding the Act’s introduction, Arthur C. Evans Jr., PhD., Chief Executive Officer of the American Psychological Association framed the Act’s importance as a matter of “health equity.”

According to Dr. Evans, “[a]llowing patients to receive mental health services by audio-only telephone is a matter of health equity for underserved populations and [the American Psychological Association] applauds this important equalizer.”  Similarly, as described by Anna Mangum, MSW, MPH, Deputy Director of Programs, National Association of Social Workers, the Pandemic has, “laid bare the major disparities in health across the nation.  Eliminating these disparities must be one of our highest priorities. Making audio-only telehealth permanently available is one of the key mechanisms for advancing this priority.”

Establishing a Doctor-Patient Relationship over the Phone

The Act’s detractors maintain that a telephone call between a physician and a patient is insufficient to establish a new therapeutic relationship in a manner that is commensurate with an in-person or video interaction.  Since an audio call falls short in this regard, critics have argued that an “audio visit” is not worthy of Medicare coverage and, in turn, Medicare reimbursement.

Others are concerned about assessing the appropriate payment rates for audio-only telehealth services. Prior to the Pandemic, reimbursable telehealth services would be paid a lower rate than an in-person visit. During the Pandemic, however, Medicare paid the same rate for a telehealth visit as it would pay for an in-person visit. Going forward, further analysis should be done to determine the level of resources involved in telehealth visits outside of a public health emergency, and to inform the extent to which payment rate adjustments might need to be made.

Finally, many are concerned that from a fraud and abuse perspective, as more health care providers use audio-only technology to render telehealth services, certain practitioners may, in an effort to maximize payments from Medicare, offer shorter telehealth visits with patients or bill more visits than are possible in a day.

By removing the geographic limitation and the technological requirements that underly the  Medicare program’s telehealth benefit, the Act makes it possible for CMS to make those changes that it wished it could have made in the Final Rule.  We will continue to monitor the progression of the Act and those other telemedicine-related bills that are currently wending their way through the legislative process.