COVID-19 Telehealth Flexibilities Extending and Enduring

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But Congress' short-term extension creates longer-term uncertainty for the healthcare industry

In the wake of an end of year filled with intense negotiations and political wrangling, Congress has successfully enacted the American Relief Act, 2025 ("the Budget Bill" or "legislation"), narrowly averting a government shutdown. This pivotal piece of legislation temporarily extends, for a brief 90-day period, several flexibilities to the pre-pandemic, restrictive Medicare coverage and payment rules applicable to telehealth that were on the verge of expiration. This short-term extension is a relief for the healthcare industry but also creates significant uncertainty regarding the longer-term availability of Medicare coverage for telehealth services. Congress' quick fix at the final hours of 2024 highlights the urgent need for more permanent legislation to enshrine these flexibilities.

The changes in the Budget Bill are designed to ensure that telehealth remains a viable option for healthcare providers and Medicare patients. Below, we describe the specific telehealth flexibilities that have been extended for 90 more days, or until Congress acts again, and we also summarize the telehealth practices that were made permanent in the 2025 Physician Fee Schedule.

Telehealth Flexibilities Extended via the Budget Bill

Geographic and Originating Site Flexibilities

The Budget Bill extends the removal of geographic restrictions for Medicare coverage of telehealth services through March 31, 2025. Section 1834(m) of the Social Security Act ("SSA") defines the specific locations of an "originating site," which is the place where a Medicare beneficiary must be located at the time the telehealth service is furnished in order for the service to be covered. However, during the COVID-19 Public Health Emergency ("PHE"), Section 4113 of the Consolidated Appropriations Act ("CAA") extended the availability of Medicare telehealth services to beneficiaries regardless of geographic location or site of service by temporarily removing such statutory restrictions outlined in the SSA's definition of "originating site" until the end of 2024.

In the Budget Bill, Congress extended this flexibility through March 31, 2025. For at least the next 90 days, Medicare beneficiaries can avail themselves of telehealth services irrespective of their location, whether urban or rural and whether presenting from home or from a hospital or clinic.

Expansion of Eligible Practitioners

The Budget Bill also preserves the expanded cadre of practitioners eligible to provide Medicare-covered telehealth services through March 31, 2025. During the COVID-19 PHE and through December 31, 2024, all providers eligible to bill Medicare for professional services could offer distant site telehealth, including physical therapists, occupational therapists, speech language pathologists, and others.

Telehealth by Federally Qualified Health Centers and Rural Health Clinics

Pursuant to the Budget Bill, telehealth services rendered by Federally Qualified Health Centers ("FQHCs") and Rural Health Clinics ("RHCs") can continue offering a comprehensive array of telehealth services until March 31, 2025. These Medicare-covered telehealth services encompass primary care consultations, chronic disease management, preventive health screenings, and behavioral health services.

Mental Health Services via Telehealth

Under the SSA, payment for telehealth services for mental health disorders requires that a physician or practitioner provide an in-person service within six months before the initial telehealth session and at intervals determined by the government for ongoing services. The Budget Bill defers the implementation of this in-person requirement for Medicare coverage of mental health services delivered via telehealth through March 31, 2025. This deferment acknowledges the indispensable role telehealth plays in mental health care, especially in providing timely and accessible support to patients who may encounter barriers to in-person visits. Telehealth services for mental health include therapy sessions, psychiatric evaluations, medication management, and crisis intervention.

Audio-Only Telehealth Services

Recognizing the significance of diverse telehealth modalities, the legislation extends the use of audio-only for all Medicare-covered telehealth services through March 31, 2025. This extension is particularly advantageous for patients who may lack access to video-capable devices or high-speed internet, ensuring they can still receive necessary care. Audio-only services are vital for maintaining patient-provider communication as well as facilitating consultations, follow-up appointments, and health assessments over the phone. This modality is especially crucial for elderly patients or those in remote areas where internet connectivity is unreliable or even unavailable.

Telehealth in Hospice Care

The Budget Bill also address the utilization of telehealth in hospice care. Telehealth can continue to be employed to conduct face-to-face encounters required for hospice recertification, with this flexibility extended through March 31, 2025. This provision aids in streamlining the process for patients and providers, reducing the burden of in-person visits and allowing for more efficient care management in hospice settings.

Other Flexibilities Temporarily Extended Through 2025 via the 2025 Physician Fee Schedule

In addition to the telehealth flexibilities extended by way of the Budget Bill described above, CMS also extended the following telehealth flexibilities through December 31, 2025, by way of the Physician Fee Schedule:

  • Frequency Limitations: CMS has historically placed frequency restrictions on how often practitioners may furnish certain services via telehealth. Limitations regarding how often practitioners may furnish the service via Medicare telehealth were temporarily removed in the COVID-19 PHE in the March 31, 2020, COVID-19 interim final rule (85 FR 19241).

    In the new Physician Fee Schedule, frequency limitations suspensions have been extended for the following services:

    • Subsequent Inpatient visits (CPT codes 99231-99233);
    • Subsequent Nursing facility visits (CPT codes 99307-99310); and
    • Critical care consultation services (CPT codes G0508-G0509).
  • Direct Supervision Using Live Video: Under Medicare Part B, certain types of services are required to be furnished under specific minimum levels of supervision by a physician or other practitioner. Direct supervision requires the physician (or other supervising practitioner) to be present in the office suite and immediately available to furnish assistance and direction throughout the performance of the service. During the COVID-19 PHE, CMS changed the definition of "direct supervision" to allow a supervising practitioner to be immediately available through real-time audio/video technology. This definition was extended through 2024.

    CMS extended the definition of "direct supervision" to include audio-visual communications technology through 2025. In other words, the presence of a physician (or other practitioner) includes virtual presence through audio/video real-time communications technology (excluding audio-only). CMS will continue to allow the use of telehealth via audio/video real-time communications to meet the direct supervision requirements, which include the "immediately available" requirement, for the following: (1) incident-to services; (2) teaching physicians' supervision of residents furnishing telehealth; and (3) supervision of auxiliary personnel in FQHCs and RHCs.

  • Reporting Distant Site Practice Location on CMS Form 855B: Distant site providers may continue to use their currently enrolled practice location address as the location for providing services via telehealth through 2025 instead of their home address. During the COVID-19 PHE, more distant site practitioners rendered telehealth services from their homes, many of which were required to update their Medicare 855B to reflect their home address, prompting privacy and safety concerns. Distant-site practitioners are permitted to use their currently enrolled practice locations instead of home addresses when providing Medicare telehealth services from their home.

Telehealth Flexibilities Made Permanent

CMS also made the following telehealth flexibilities permanent earlier this year:

  • Audio-Only Communication: In the new Physician Fee Schedule, CMS adopted a revised definition of "interactive telecommunications system" to allow audio-only for telehealth services furnished for purposes of diagnosis, evaluation, and/or treatment of a mental health disorder (other than for treatment of a substance use disorder or co-occurring mental health disorder). Beginning January 1, 2025, two-way, real-time audio-only telecommunications technology is permitted for these Medicare-covered mental health services, including to a patient in their home, provided that other required criteria have been met. Audio-only modalities are permitted in these circumstances when the patient either cannot use or does not consent to video technology.
  • Reimbursement of Overhead/Practice Expense RVU: In response to the comments received, CMS clarified that services billed with POS 10 (e.g., "originating site" is the patient's home) will continue to be paid at the non-facility rate.
  • Opioid Treatment Programs (OTPs): The following flexibilities for OTPs have been made permanent: In certain cases, OTPs may furnish periodic assessments via audio-only (live video must be unavailable, and additional SAMHSA and DEA requirements must be met).

Key Takeaways

The American Relief Act, 2025, marks a modest yet important step in embedding telehealth as a core component of modern healthcare. By removing barriers, broadening eligibility, and extending essential flexibilities, Congress has ensured that telehealth remains a viable and accessible means of delivering healthcare services. The permanent integration of certain flexibilities, such as audio-only communication and specific provisions for opioid treatment programs, underscores a dedication to evolving telehealth practices. However, the brevity of the 90-day extension underscores the pressing need for more enduring legislative measures to solidify these advancements and provide stability for the healthcare sector. Healthcare providers and organizations are encouraged to persist in advocating for its permanent adoption while capitalizing on the opportunities presented by this new legislation. As these provisions are implemented, they promise to elevate the quality and accessibility of healthcare, benefiting both providers and patients nationwide, while paving the way for future telehealth innovations.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

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