On July 10, 2024, the Centers for Medicare and Medicaid Services (CMS) released their proposed Physician Fee Schedule (PFS) for CY 2025. Each year the PFS contains new or updated policies which CMS will be adopting for Medicare in the following year.  Generally, each PFS contains items that will impact telehealth, and with December 31, 2024 as the current end date to the COVID-19 telehealth policy waivers (see CCHP’s Medicare 101 page), many have been waiting to see what the agency will be proposing for 2025. At this time, these are only proposals. The public has until 5:00 pm (no time zone given) September 9, 2024 to provide comments to CMS regarding these proposed policies.

Overall, the majority of the proposals appear to demonstrate CMS’ attempts to mitigate any potential impacts should the deadline of December 31, 2024 for the telehealth waivers remain unchanged.  Throughout the proposed PFS elements related to telehealth, there is acknowledgement of impacts on Medicare enrollees should the telehealth waivers end in 2024.  While CMS does take several actions to alleviate such potential effects, some of the current temporary telehealth waivers (and permanent limitations) are based on federal statute and do not allow CMS to affect any change on them without Congressional action first. 

One of the most significant proposals, and one that would be a permanent policy if finalized, is that CMS proposes to change the definition of “interactive communication system” to allow audio-only for any service delivered via telehealth. Previously, in the 2022 PFS, CMS had changed the definition of “interactive communication system” to allow for audio-only to deliver only mental and behavioral health services. This current proposal will allow audio-only to be used for any eligible service.  Specifically, the proposal defines an interactive communication system to:

“also include two-way, real-time audio-only communication technology for any telehealth service furnished to a beneficiary in their home if the distant site physician or practitioner is technically capable of using an interactive telecommunications system as defined as multimedia communications equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication, but the patient is not capable of, or does not consent to, the use of video technology.”

Readers may wonder how CMS can enact such a significant change without prior Congressional action.  The applicable section in the Social Security Act notes that telehealth in Medicare should be delivered via a “telecommunications system,” but never defines what that phrase means.  It was left to CMS to determine exactly what “telecommunications system” meant through the regulatory process (note, the word “interactive” is not in federal law, that was added in regulations by CMS many years ago).  Therefore audio-only policy is not a change that CMS would need to wait for Congress to act on.

Another area of policy CMS does not have to wait for Congress on before taking action is when approving which services will be placed on the covered telehealth delivered services list (current list of eligible services).  CMS’ process for this is to accept recommendations each year from the public on which service codes should be placed on the list (as well as make some of their own) and assess such nominations using a five-step process (see CCHP’s Final Rule for CY 2024 PFS for more details on the new five-step process). Services can be placed on the list on a provisional or permanent status. For 2025, there are a mix of permanent and provisional codes that CMS is proposing to add to the telehealth eligible services list.  Some provisional codes include caregiver training (97550-97552), and proposed permanent additions to the list include codes for individual counseling for pre-exposure prophylaxis by a physician or qualified health professional to prevent human immunodeficiency virus (G0011, G0013).

However, certain major policy areas which CMS cannot act without Congress enacting legislation first are still set to expire at the end of 2024. These include policies that impact the location of the patient at the time of the telehealth interaction and the type of provider that is eligible to provide services via telehealth.  CMS notes throughout the proposals their concerns regarding the impact on Medicare enrollees abruptly being cut off from accessing these services via telehealth if the current waiver expires. For example, if a Medicare enrollee is currently receiving services in their home via telehealth from a physical therapist, that would no longer be an option for that enrollee starting on January 1, 2025 as the home would not be an eligible originating site for the service and physical therapists are not currently on the permanent eligible telehealth provider list for Medicare.  Additionally, if the home was located in an urban area, that would be yet another factor that would disqualify the service from Medicare reimbursement.

Some attempts to mitigate the potential impacts of these policies ending should the waiver deadline remain unchanged include several proposals specifically addressing federally qualified health centers (FQHCs) and rural health clinics (RHCs). The first proposal is one that would continue to allow, on a temporary basis, payment to FQHCs/RHCs for non-behavioral health visits that use telecommunications technology. Additionally, CMS is asking for comments about potentially redefining a “visit” to include live video for an FQHC/RHC.  In 2022, CMS changed the definition for a mental health visit for FQHCs/RHCs to include live video and audio-only. Should the definition be changed to include live video in the “visit” definition, it would allow FQHCs/RHCs to provide all services via telehealth at their applicable encounter rates, though those services would not be considered telehealth-delivered services, and thus would not be held to the statutory requirements that are applicable to telehealth in Medicare.  While a proposal to alter the definition of a “visit” is not made in this PFS, CMS is soliciting comments on the idea.

Additionally, CMS is proposing to delay for an additional one-year the prior in-person visit requirement for FQHCs/RHCs when providing a mental health visit via telecommunication technology when the beneficiary is in their home.  It is important to note that this proposal is only made for FQHCs/RHCs and CMS is able to do this because the original policy’s origins are regulatory (PFS 2022).  A similar requirement on other practitioners was made in statute through the Consolidated Appropriations Act of 2021 and CMS cannot alter that without Congressional action.  This is a good example of the limitations around what CMS can do in this process regarding telehealth policy. 

Additional proposals include: 

• Originating site fee – $31.04
• CMS is proposing to extend to the end of 2025 the ability of distant site providers to continue to use their currently enrolled practice location address instead of their home address as the location of where they are providing services via telehealth.
• Creation of a newly defined set of Advance Primary Care Management (APCM) for FQHCs and RHCs.  The coding for these services incorporates elements of existing CTBS services.  
• Extension of frequency limitations for inpatient visits, nursing facilities and critical care consults to the end of 2025. 
• Returning CPT Codes 99441, 99442, and 99443 to a bundled status when the telehealth flexibilities expire on December 31, 2024.
• New codes that would allow clinical psychologists, clinical social workers, marriage and family therapists, and mental health counselors to bill for interprofessional consultations with other practitioners whose practice is similarly limited, as well as with physicians and practitioners who can bill Medicare for E/M services and would use the current CPT codes to bill for interpersonal consultations.
  • Additionally new G-codes for behavioral health services

CCHP has prepared a more in-depth fact sheet regarding the proposals, and as can be gleaned from the foregoing, CMS has seemingly worked with the powers they have to try to limit an abrupt stoppage of telehealth delivered services should the current telehealth waiver deadline of December 31, 2024 hold.  Additionally, the specific requests for commentary on several items may provide some insight into what CMS might propose in the future for telehealth policy. 

If you wish to provide comments on these proposals, you have until 5:00 pm (no time zone given), September 9, 2024.

POLICIES FOR INSTITUTIONS

The PFS is not the only regulatory proposal recently released.  CMS also issued the proposed rules for Hospital Outpatient Prospective Payment and Ambulatory Surgical Center Payment Systems.  During COVID-19, hospitals could provide outpatient therapy services, diabetes self-management therapy (DSMT) and medical nutrition therapy (MNT) services to patients in their homes through a telecommunications system. The services would be paid separately or part of a bundled payment depending on if they were provided personally by a billing practitioner or institutional staff and billed by the institution. CMS’ Hospital Without Walls (HWW) program allowed hospitals to reclassify the patient’s home as part of the hospital and hospitals were allowed to bill for these services.  Wanting to maintain access to outpatient therapy, DSMT and MNT services that are provided remotely by institutional staff to the patient in their homes, CMS continued to allow institutions to bill for these services until the end of 2024.  Within the 2025 proposals, CMS writes:

“To the extent that therapists and DSMT and MNT practitioners continue to be distant site practitioners for purposes of Medicare telehealth services, we anticipate aligning our policy for these services with policies under the PFS and continuing to make payment to the hospital for these services when furnished by hospital staff.”

In these rules, CMS also notes that the prior in-person visit requirement for mental health services being delivered in the patient’s home (and without falling into any other narrow exception) has been delayed until January 1, 2025.  Unless some further action is taken, this requirement will be activated.  CMS writes:

“However, to the extent that these in-person visit requirements are delayed in the future for professionals billing for mental health services via Medicare telehealth, we anticipate that we would align the requirements for mental health services furnished remotely to beneficiaries in their homes through communications technology with mental health services furnished via Medicare telehealth in future rulemaking.”

CMS is also proposing in these rules to create an exception to the Medicaid clinic four walls requirement.  The proposal would allow for Medicaid payment for services provided outside the “four walls” of the clinic for IHS/Tribal clinics, behavioral health clinics and clinics located in rural areas.

Much like the PFS, in the Hospital/Other Institutions proposed rules, CMS is attempting to set up the landscape to adjust to any future events that could impact these policies whether that means extending the December 31, 2024 deadline, or another type of action.  The due date for comments on these hospital proposals is also September 9, 2024.

For more on the proposals for institutions, see the full text of the rule, and see CCHP’s factsheet and the full text of the CY 2025 PFS rule for all of the PFS details.  In addition to the PFS fact sheet, CCHP has created a short video to discuss these proposals.

Source: Center for Connected Health Policy, personal communication, July 18, 2024