Telehealth and the Evolving Landscape of Medicare Requirements

Telehealth is an important and growing part of healthcare delivery that a wide range of patients and healthcare providers have come to rely on for access to care and continuity of treatment. Telehealth took on an especially significant role in serving behavioral and mental health needs during the COVID-19 Public Health Emergency ("PHE"), allowing patients to connect with their physicians and other practitioners while promoting safety by reducing exposure to and the spread of the virus. For instance, during the PHE, the U.S. Department of Health & Human Services ("HHS") facilitated the expanded use of telehealth in mental health care by relaxing several Medicare regulatory requirements to allow providers and suppliers greater flexibility to offer and obtain reimbursement for telehealth services under the challenging circumstances presented by the pandemic. Since then, key elements have been recognizing a patient's home as an "originating site" and allowing telehealth without needing an initial or periodic in-person visit with a clinician to support the telehealth services. But, with the end of the PHE, the Medicare rules for telehealth services are changing again.

Some of the telehealth flexibilities that were allowed during the PHE will remain permanent. Going forward: (1) Federally Qualified Health Centers ("FQHCs") and Rural Health Clinics ("RHCs") can serve as "distant site" providers for behavioral/mental telehealth services; (2) Medicare patients can receive telehealth services for behavioral/mental health care in their homes; (3) There are no geographic restrictions or "originating site" requirements for behavioral/mental telehealth services; (4) Behavioral/mental telehealth services can be delivered using audio-only communication platforms; and (5) Rural Emergency Hospitals are eligible "originating sites" for telehealth. [1], [2]

However, many other telehealth flexibilities remain only temporary. The following telehealth flexibilities are currently set to expire after December 31, 2024: (1) FQHCs and RHCs being permitted to serve as a distant site provider for non-behavioral/mental telehealth services; (2) Medicare patients being able to receive telehealth services in their home for non-behavioral/mental health care; (3) Having no geographic restrictions for an "originating site" for non-behavioral/mental telehealth services; (4) Using audio-only communication platforms for non-behavioral/mental telehealth services; (5) No requirement for an in-person visit within six months of an initial behavioral/mental telehealth service, and annually thereafter; and (6) Allowing any eligible Medicare providers to use telehealth services.[3]

Unless Congress and HHS take further action, eliminating these telehealth flexibilities starting in 2025 may present operational challenges to providers, particularly those with current business models with a significant telehealth component. For example, the requirement for in-person visits, including for behavioral/mental telehealth, may impact patient populations and clinicians who have mobility challenges, lack transportation, or are separated by geography, making such in-person visits a barrier to access to care or continued care. Providers who were once able to connect with patients across distances, including within the same state, would now need to ensure required in-person visits are part of the care plan, though they were once unnecessary.

Recognizing these challenges, several trade associations and lawmakers are prioritizing advocacy efforts and bill sponsorships to make all Medicare telehealth flexibilities implemented during the PHE permanent. Such action is aimed at perpetuating critical access to safe, affordable, high-quality health care where and when patients need it and offering certainty to patients and health care providers alike. Specific priorities include, but are not limited to, the following: (1) Ensuring equitable payment and availability for FQHCs and RHCs furnishing non-behavioral/mental telehealth services; (2) Removing geographic and "originating site" restrictions for non-behavioral/mental telehealth services; (3) Eliminating the periodic "in-person" rules set to return after December 31, 2024, including for behavioral/mental health services; (4) Permanently maintaining coverage for audio-only treatment; and (5) Permanently expanding the list of eligible Medicare providers to include physical therapists, speech-language therapists, occupational therapists, and audiologists.

In furtherance of these priorities and other telehealth-related goals, the following bills have been introduced/re-introduced and are supported by several trade associations and organizations. Please note that this is not an exhaustive list but highlights significant pending federal legislative measures.

1. "Creating Opportunities Now for Necessary Care Technologies ("CONNECT") for Health Act" (HR 4189 and S. 2016)—This legislation would permanently remove geographic requirements for telehealth services that limit where patients can access telehealth, add homes and other clinically appropriate "originating sites," allow FQHCs and RHCs to serve as "distant sites," and remove requirements for an in-person evaluation, among other things.
2. "Telemental Health Care Access Act" (HR 3432 and S. 3651 )—This legislation would remove the statutory in-person mandate to receive mental telehealth services for Medicare beneficiaries, thereby allowing patients to directly access mental health services from their home via telehealth without any in-person requirements, which is consistent with how substance use disorder telehealth services are covered under Medicare.
3. "Telehealth Expansion Act" (HR 1843 and S. 1001)—This legislation would extend the exemption for telehealth services, allowing individuals with high-deductible health plans with health savings accounts to access telehealth services without meeting their deductible.
4. "Telehealth Benefit Expansion for Workers Act of 2023" (HR 824)—This legislation would treat telehealth services as an excepted benefit for part-time, contracted workers who don't qualify for health care coverage, thereby allowing such employees who are otherwise ineligible for the employer's group health plan to access stand-alone telehealth benefits.
5. "Telehealth Response to E-Prescribing Addiction Therapy Services ("TREATS") Act (HR 5163 and S. 3193)"—This legislation would permanently remove the in-person examination requirement for prescribing controlled substances for treating substance use and opioid use disorders.

With supportive research growing and stakeholders reiterating the importance of access to care, legislators are continuing work to introduce further pro-telehealth laws at the federal and state levels and expand telehealth beyond 2024. Verrill's team of seasoned healthcare lawyers represents institutional healthcare providers of all sizes and closely follows the changes in these telehealth rules. For more information, please contact Andrew Ferrer, Amanda Beauregard, or another member of Verrill's team.