Congress Considers Extending Medicare Telehealth Flexibilities

With an eye to the end of the COVID-19 public health emergency (PHE) and as members of Congress negotiate a spending package to fund the government beyond March 11, pressure is building for Congress to take action to extend or make permanent some of the temporary flexibilities in Medicare beyond the end of the PHE. (Medicaid rules are more flexible, and federal legislation is not required to extend telehealth pandemic flexibilities.) Advocates are pushing Congress for an extension of certain telehealth flexibilities in the forthcoming spending bill, while various members of Congress have introduced bipartisan bills aimed at extending or making permanent temporary flexibilities within Medicare (such as the Telehealth Extension and Evaluation Act; Telehealth Extension Act; and Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act). These bills address a number of the policies outlined below, and provisions of these proposals may be folded into the forthcoming spending bill.

Medicare Telehealth Flexibilities That Require Congressional Action to Extend or Make Permanent. The following is a list of select major telehealth flexibilities currently set to expire at the end of the PHE, which are subject to these ongoing negotiations and require Congressional action to extend or make permanent:

• Enabling beneficiaries outside of rural areas to receive care via telehealth: Prior to the pandemic, telehealth services were only covered in Medicare for beneficiaries in rural areas, subject to limited exceptions such as telehealth services used to diagnose strokes. Temporary flexibilities enabled all Medicare beneficiaries to receive care via telehealth, regardless of their geographic location.
• Expanding the list of qualified originating sites to include a beneficiary’s home: Prior to the pandemic, the vast majority of telehealth services were only covered when the beneficiary traveled to and received the telehealth service from a qualified medical facility; a beneficiary’s home was not an eligible originating site for receiving telehealth services. Temporary flexibilities enabled Medicare beneficiaries to receive telehealth services from their homes.
• Allowing an expanded list of practitioners to bill for telehealth: Prior to the PHE, Medicare would generally only cover telehealth services provided by physicians and certain other practitioners (e.g., physician assistants, clinical social workers, and clinical psychologists). During the PHE, any Medicare-enrolled provider may bill for telehealth services.
• Allowing FQHC/RHCs to serve as distant sites: Prior to the PHE, Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) were not eligible to serve as distant site telehealth providers (i.e. they could not provide services via telehealth). During the PHE, FQHCs and RHCs are considered eligible distant sites for the delivery of telehealth services (and CMS has made this permanent for behavioral health services, see below).

Medicare beneficiary access to telehealth services will be restricted if Congress does not take action to extend or make permanent these temporary flexibilities.

Medicare Telehealth Flexibilities That Require CMS Action to Extend or Make Permanent. Some telehealth flexibilities enacted during the PHE may be continued by CMS without Congressional action. Notably, the impact of the flexibilities implemented by CMS, if extended, hinges upon the continuation of the flexibilities noted above. CMS may choose to extend or make permanent the following flexibilities:

• Expanded list of covered telehealth services: Prior to the PHE, Medicare covered roughly 100 telehealth services. During the PHE, CMS temporarily expanded Medicare coverage by adding more than 140 additional telehealth services, including (but not limited to) inpatient and emergency department services, long-term care services, and behavioral health services. In the Calendar Year (CY) 2022 Medicare Physician Fee Schedule (MPFS) final rule, CMS extended coverage of certain Medicare telehealth services through CY 2023.  
• Expanded list of eligible telehealth modalities: Prior to the PHE, CMS interpreted a statutory requirement that telehealth services be delivered via a “telecommunications system” to permit the use of interactive audio-video technologies only; audio-only interactions were not covered. In addition, cell phones were prohibited from being used to deliver telehealth services. During the PHE, recognizing not all providers and patients had access to video-enabled technology, CMS allowed for the delivery of telehealth services via cell phones, established temporary coverage of telephonic evaluation and management services, and allowed for a select set of covered telehealth services to be delivered via audio-only visits. CMS has already announced that coverage for telephonic evaluation and management services visits will expire at the end of the PHE.

In the MPFS rule, in addition to extending coverage of telehealth services as noted above, CMS made permanent telehealth flexibilities related to behavioral health by extending coverage of tele-behavioral services delivered to patients in their homes and via audio-only technology and allowing for RHCs and FQHCs to serve as distant sites for the purposes of delivering mental health services via telehealth.

The cost of extending telehealth flexibilities will be a key issue to watch as negotiations on extending FY 2022 spending continue over the next few weeks. While there is broad agreement that it is important to continue expanded access to telehealth within the Medicare program, the cost of extending provisions beyond the PHE is high. Even a temporary extension will depend on finding offsets to pay for the extension, which at this point is not certain.