On March 15, 2022, President Joe Biden signed into law the Consolidated Appropriations Act, 2022, which was passed by Congress on March 8, 2022 (CAA). The CAA temporarily extends meaningful changes for reimbursement of Medicare services delivered via telehealth. All CAA provisions regarding telehealth amendments will last for 151 days following the expiration of the Public Health Emergency (PHE), which is currently set for April 16, 2022. Since the CAA telehealth provisions are temporary, the conditions for Medicare reimbursement for telehealth may undergo more significant changes in the next several months as these CAA provisions expire.

The CAA expands the sites patients can use during telehealth services to include a patient’s home while also expanding the types of providers who can deliver such services. Additionally, the CAA solidifies the use of audio-only technology to deliver telehealth services and delays mental health in-person requirements by nearly 6 months.

Sites and Practitioner Redefined

In what may turn out to be a blueprint for a future permanent scheme, the CAA temporarily implements new conditions for reimbursement as well as extends several mechanisms under which practitioners have operated since the PHE. Under the CAA, “originating site” will include the home of an individual,^[1] meaning patients can participate in remote visits with practitioners from their home rather than only from designated locations. Additionally, the CAA continues the PHE practice of federally qualified health centers and rural health clinics acting as the “distant site”— the location of the practitioner during the telehealth service.

Without the CAA, telehealth reimbursement is only permitted if the eligible patient participates in telehealth from a prescribed “originating site,” such as a physician office, a critical access hospital or hospital, or a skilled nursing facility. Additionally, these “originating sites” must be designated as a rural health professional shortage area, a non-Metropolitan Statistical Area county, or a pre-approved telemedicine demonstration entity.^[2] While the PHE waivers amend these requirements and allow telehealth from a patient’s home, such flexibility would expire at the end of the PHE period without the CAA amendments. Additionally, absent the PHE, federally qualified health centers and rural health clinics are not considered a “distant site,”^[3] thereby limiting reimbursement for services performed from such locations.

The CAA also expands telehealth reimbursement for a number of qualified professionals, including occupational therapists, physical therapists, speech-language pathologists, and audiologists.^[4] Absent the PHE, reimbursement for telehealth services is limited to physicians and “practitioners,” which includes physician assistants, nurse practitioners, registered nurse anesthetists, nurse-midwives, clinical social workers, clinical psychologists, and registered dieticians.^[5]

Technology and In-Person Flexibilities

The CAA solidifies current PHE waiver flexibilities related to telehealth technology, continuing reimbursement for designated services delivered via audio-only telecommunications, which was set to expire at the end of the PHE.[6] Additionally, the CAA amends the mental health services requirement of an in-person visit within six months of the initial telehealth service;[7] now, such in-person visits may be delayed until the 152nd day after the end of the PHE.[8]

In addition to the CAA amendments regarding telehealth, the Centers for Medicare and Medicaid (CMS) recently concluded a study of health services delivered during the PHE, noting that telehealth provided “critical” services to Medicare beneficiaries. CMS hinted that such findings could be used to justify permanent changes to telehealth services.

It is important that providers and practitioners understand the ever-changing rules and conditions of CMS reimbursement. For more information regarding the CAA and changes to the telehealth reimbursement landscape, please contact a Dinsmore health care attorney.

ENDNOTES

[1] See CAA, Title III, Subtitle A, Sec. 301(a).

[2] 42 U.S.C. 1395m(m)(4)(C).

[3] 42 U.S.C. 1395m(m)(2); 42 U.S.C. 1395m(m)(8)(A)(ii).

[4] CAA, Title III, Subtitle A, Sec. 302.

[5] 42 U.S.C. 1395m(m)(4)(D)-(E); 42 U.S.C. 1395u(b)(18)(C).

[6] CAA, Title III, Subtitle A, Sec. 305.

[7] See 42 U.S.C. 1395m(m)(7)(B); 42 U.S.C. 1395m(m)(8).

[8] CAA, Title III, Subtitle A, Sec. 304.