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Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

The Centers for Medicare and Medicaid Services (CMS) recently released a table copy of its calendar year 2022 Medicare physician fee schedule proposed rule. The proposed rule is chock full of policy updates concerning telehealth, remote physiologic monitoring (RPM), and new remote therapeutic monitoring codes. Coming on the heels of the significant telehealth waivers put in place during the COVID-19 public health emergency (PHE), CMS proposes to continue the steady expansion of virtual care options with this rule.

With respect to telehealth, the proposed rule represents a mix of CMS-driven policy updates and implementation of legislative directives from Congress. For example, CMS built out in the proposed rule the regulatory framework to implement the Consolidated Appropriations Act of 2021, which permitted the expansion of telemental health services to patients in their homes so long as they had previously established an in-person relationship with the billing practitioner. Although the underlying legislation gave CMS the discretion to forgo requiring in-person mental health visits for established patients, CMS elected to require that each telemental health visit billed have an in-person visit within the preceding six months. CMS believes that there are important clinical reasons to require periodic in-person assessments and visits in the telemental health space and asserts that a six-month window effectively balances between access to needed care and ensuring that patients maintain robust in-person relationships with their clinicians.

Nevertheless, CMS appears to be exploring the boundaries of what virtual healthcare can offer. For instance, for telemental health services, CMS is considering making permanent an audio-only option for certain patients who are unwilling or unable to receive services through audio-video means. CMS requests stakeholder commentary on possible safeguards surrounding audio-only expansion, but appears set to make this PHE waiver permanent for mental health services received in patients’ homes. In addition, CMS elected to expand the availability of remote monitoring services by introducing several new remote therapeutic monitoring codes adopted by the American Medical Association late last year. These codes may very well bridge existing policy gaps in RPM services by enabling CMS to cover monitoring of data collected in various means not available under RPM.

The proposed rule has a clear focus on expanding access in rural areas, which is consistent with the Biden-Harris administration’s stated concern on bridging health disparities in these communities. For example, the proposed rule also enables greater telehealth coverage at federally qualified health centers and rural health centers, a long-sought policy modification that will greatly enhance the efficacy of these providers.

Finally, CMS proposes to extend certain categories of telehealth services that were payable under the PHE until the end of 2023 to enable stakeholders to provide additional clinical evidence in support of making such services permanent. The temporary coverage of these services is currently set to expire at the end of 2021, so this will enable health systems, clinicians, and other interested parties to develop, process, and submit data to CMS for codes relevant to their practice areas.

CMS's proposed rule is an important opportunity for telehealth stakeholders to make their voices heard. While CMS requests specific commentary on certain items, there are many other issues that may be open for consideration. For instance, should CMS officially adopt a regulatory definition of “face-to-face” that includes audio-video telecommunication systems, thereby more explicitly distinguishing between “in-person” services and “face-to-face” services? The comment period is expected to be open until September 22—be sure to get your comments in timely!