Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

We hosted a very informative Fast Break session last month on CMS telehealth and RPM updates. If you weren't able to join us, the session was led by healthcare litigation associates Jake Harper and Tesch West, with special guest Ben Steinhafel, director of policy and external affairs at the Center for Telehealth and eHealth Law.

To set the stage, our presenters provided an overview of the background of CMS telehealth and remote patient monitoring (RPM) issues before diving into CMS’s approach to telehealth and remote therapeutic monitoring (RTM). While CMS has been interested in virtual care for many years, statutory restrictions and lack of knowledge and data about this type of service has slowed or prevented more widespread adoption. The COVID-19 pandemic has given consumers, practitioners, insurers, and regulators the opportunity to begin exploring what benefits virtual healthcare services can bring, resulting in an increased comfort level in use of technology and successful outcomes. Given what we’ve seen during the pandemic, it is unlikely that there is a scenario where telehealth and RPM services go away at this point in time, but the question remains: in what particular way are they going to continue to exist in the Medicare program?

The Physician Fee Schedule (PFS) proposed rule digs into the themes that the Biden-Harris administration has tried to prioritize in promoting health equity and expanding access to services via telehealth for behavioral health. One of the major changes that is proposed in the PFS is that Medicare, for the first time, will pay for mental health virtual visits that are provided by rural health clinics and federally qualified health centers. Additional changes have also eliminated geographic restrictions on telemental healthcare coverage, essentially allowing the patient’s home to be an originating site for coverage (provided certain conditions are met), as well as amending requirements related to interactive telecommunication systems, namely to allow for audio-only services when used for the diagnosis, evaluation, or treatment of mental health issues in a patient’s home.

In addition to these changes, CMS has also recognized a new series of RTM codes, which have been largely based on RPM codes. The new codes give providers additional opportunities for reimbursement in RPM/RTM programs, and CMS is proposing paying RTM service codes at the same rate as RPM service codes. The most significant difference between these service codes is that RTMs are focused on non-physiological types of services, such as diagnosis and treatment for mental health disorders. CMS has also indicated that RTMs could essentially be self-reported by patients, another significant differentiator from RPMs. CMS has also mentioned that they expect that the primary billers for RTM codes would be nurses and physical therapists, opening up possibilities for providers to use these codes where they previously had not been able to, further opening up new opportunities for other providers to provide similar types of services.

Taking a look at stakeholder issues, our presenters highlight telemental healthcare as a champion in recent months upon being majorly expanded in the Consolidated Appropriations Act. With continued support from Congress and the Biden-Harris administration in expanding telemental healthcare access, Ben notes that looking toward the future, it is likely we’ll see further telehealth expansion for primary care, dermatology, and other specialties.

The ongoing impact of COVID-19 has resulted in extension of telehealth flexibilities until the end of 2023, which should be reassuring to providers. It is likely that both Congress and CMS are using this two-year extension as a way to collect data and to build understanding of utilization and cost. Ultimately, federal legislation is required to make these changes permanent.

For more information, catch up on all of the details from this Fast Break.

For September’s edition of Fast Break, we will chat with Dan Kadish, a Morgan Lewis labor and employment associate and member of our COVID-19 vaccine task force, to discuss latest developments and best practices regarding vaccine mandates. Join us on September 16 at 3:00 pm ET. In the meantime, you can check out our previous Fast Break on returning to work or our Questions on COVID-19 Vaccines resource center.

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