COVID-19 PHE Ends May 11: What It Means for the Provision of Telehealth Under Medicare

The Biden Administration announced on Jan. 30, 2023, its intent to end the COVID-19 Public Health Emergency (PHE) on May 11, 2023. Fortunately, the 2023 Consolidated Appropriations Act (CAA) extends certain key telehealth flexibilities instituted during the PHE through Dec. 31, 2024. Further, the CAA requires that a study be conducted on telehealth and Medicare program integrity that includes a medical record review from Jan. 1, 2022, to Dec. 31, 2024. Stakeholders continue to engage with Congress on a more permanent solution.

Additionally, there are several other telehealth flexibilities derived from various authorities beyond the CAA. These and the CAA flexibilities are highlighted below; however, this list addresses only Medicare telehealth flexibilities and High Deductible Health Plans (HDHP) and does not cover Medicaid and commercial payers, which may institute their own payment rules.

Qualifying Providers

• PHE Policy: Types of providers are extended to physical therapists, occupational therapists and speech-language pathologists.
• CAA Provision: Section 4113(b) of the 2023 CAA extends the expanded list of qualifying telehealth providers through Dec. 31, 2024.

Originating Site/Geographic Location

• PHE Policy: Location is waived – patients can be seen anywhere.
• CAA Provision: Section 4113(a) of the 2023 CAA extends the waiver of the originating site and geographic location requirements through Dec. 31, 2024.

Audio-Only Services

• PHE Policy: The Centers for Medicare & Medicaid Services (CMS) allows reimbursement for certain phone visits, such as for Evaluation and Management (E/M) visits.
• CAA Provision: Section 4113(e) of the 2023 CAA permits the provision of telehealth services through audio-only telecommunications through Dec. 31, 2024.

Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs)

• PHE Policy: FQHCs and RHCs are allowed to be distant sites and can be reimbursed.
• CAA Provision: Section 4113(c) of the 2023 CAA permits FQHCs and RHCs to continue providing telehealth services through Dec. 31, 2024.

Mental Telehealth Services: In-Person Requirement

• PHE Policy: Medicare beneficiaries can access telemental services from home for mental health needs. However, Congress imposed an in-person requirement for these flexibilities: The beneficiaries must have an in-person visit with their healthcare provider within six months before the treatment.
• CAA Provision: Section 4113(d) of the 2023 CAA delays implementation of the in-person visit requirement through Dec. 31, 2024.

Regarding an in-person exam requirement for the prescription of controlled substances, the U.S. Drug Enforcement Administration (DEA) was mandated to create a special registration process for remote prescribing in 2008. The CAA requested that the DEA finalize the changes to the Controlled Substances Act. On Feb. 24, 2023, the DEA and U.S. Departments of Justice (DOJ) and Health and Human Services (HHS) announced proposed rules creating new exceptions for the prescribing of controlled medications via telemedicine and the expansion of patient access to certain therapies beyond the scheduled end of the COVID-19 PHE. The first proposed rule, Telemedicine Prescribing of Controlled Substances When the Practitioner and the Patient Have Not Had a Prior In-Person Medical Evaluation, would allow eligible providers to prescribe non-narcotic Schedule III-V controlled medications without an in-person medical evaluation for limited periods of time and only if certain conditions are met. The second proposed rule, Expansion of Induction of Buprenorphine via Telemedicine Encounter, would permit the use of buprenorphine for "maintenance treatment" and "detoxification treatment" of opioid use disorder via telemedicine in limited circumstances. 

Health Savings Account (HSA)-Eligible HDHP Coverage of Telehealth Services

• PHE Policy: The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) created a safe harbor allowing HSA-eligible HDHP enrollees to have telehealth services covered on a first-dollar basis. In other words, enrollees did not need to meet their deductible before telehealth services would be covered. The statutory safe harbor was not tied to the PHE and expired on Dec. 31, 2021. In March 2022, Congress extended the safe harbor until Dec. 31, 2022, through the CAA 2022, providing the same telehealth protections for HDHPs between April 1, 2022, and Dec. 31, 2022. Although many expected the extension to be retroactive, the CAA 2022 created a gap in the safe harbor application between Jan. 1, 2022, and March 31, 2022.
• CAA Provision: Section 4151 of the 2023 CAA extends the safe harbor period through Dec. 31, 2024. This extension will allow HDHPs with plan years beginning after Dec. 31, 2022, and before Jan. 1, 2025, to rely on the safe harbor and continue coverage of telehealth services. Unlike the previous extension, this extension does not create a gap in the safe harbor. Therefore, HDHPs can continue to cover telehealth services on a first-dollar basis without disqualifying HDHP participants from making HSA contributions.

Medicare Payment Parity

CMS has reimbursed telehealth visits at the same rate as if the service were furnished in person. In the calendar year (CY) 2023 Physician Fee Schedule Final Rule, CMS extended this flexibility and opportunity for payment parity for telehealth in non-facility settings through the end of 2023. Absent further rulemaking, beginning Jan. 1, 2024, distant-site practitioners would again be reimbursed based only on facility rates, resulting in reimbursement for some telehealth services reverting to lower pre-PHE levels.

HIPAA Enforcement

Throughout the COVID-19 PHE, the U.S. Department of Health and Human Services' (HHS) Office for Civil Rights (OCR) has exercised discretion in imposing penalties for violations of the Health Insurance Portability and Accountability Act (HIPAA) against covered healthcare providers in connection with their good-faith provision of telehealth using non-public-facing remote communication technologies, even if the technologies are not HIPAA-compliant. OCR's enforcement discretion terminates at the end of the PHE. However, OCR is providing a 90-day transition period for healthcare providers to come into compliance. The transition period will be in effect beginning on May 12 and expire at 11:59 p.m. on Aug. 9, 2023.

Virtual Direct Supervision

During the PHE, CMS temporarily amended the definition of "direct supervision" to include supervision via virtual presence through audio/video real-time communications technology. This is particularly helpful for services furnished "incident to" the services of a physician, which would typically require the supervising physician to be physically present in the same office suite. The amended definition was extended by regulation through the year in which the PHE ends, making the expected expiration date Dec. 31, 2023. Absent further rulemaking from CMS, beginning Jan. 1, 2024, direct supervision will again require the supervising professional to be physically present in the office suite and immediately available to furnish assistance and direction in person.

State Licensure Policies

During the PHE, any Medicare Part B beneficiary can be seen by any Medicare provider located in any U.S. state as long as the provider has a full and unrestricted medical license in at least one state. However, not all states have honored that waiver for the practice of medicine, and still others had varying licensure waivers and timelines. Notably, most state PHEs have already expired. After the PHE, physicians will be required to hold a complete and unrestricted medical license in the state where the patient is located when receiving care (the originating site) unless the state has its own rules for cross-border telehealth, such as interstate compacts, which can help facilitate licensure.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.