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

We are thrilled to share the highlights of our recent event, on June 27^th in Dallas, TX, which was an unforgettable experience for all attendees. Here’s what was featured:

Educational CE Sessions: Attendees were informed on a series of comprehensive Continuing Education (CE) sessions, where industry experts delivered the latest legislative updates related to employee benefits. Topics included the Consolidated Appropriations Act (CAA), Employee Retirement Income Security Act (ERISA), State Long Term Care (LTC) updates, “Junk Insurance” and Medicare. These sessions ensured participants left with a thorough understanding of the current changes and dynamics affecting their clients. 

“This event truly highlighted the strength and unity of our community. The diverse range of sessions, activities, and networking opportunities provided something valuable for everyone. Our goal was to create an environment where professionals could learn, connect, and contribute. I believe we achieved that,” said Jake Velie, Vice Chairman, President & COO of the Health & Voluntary Benefits Association and Chairman and CEO at National Integrative Health. 

Scout Experience at The Statler: The event included a special networking reception at the Scout at The Statler in Dallas. This unique venue provided an engaging atmosphere where attendees could enjoy interactive content and meaningful networking opportunities. The Scout experience was designed to foster connections in a relaxed, intimate, and enjoyable setting.

Charity Auction: Our charity auction was a highlight of the event, drawing enthusiastic participation from over 100 attendees. Bidders had the opportunity to win exclusive items while contributing to a worthy cause, Trinity Oaks, the only Purple Heart Wounded Warrior non-government ranch in the United States. The auction not only added an element of fun but also emphasized the community’s commitment to philanthropy raising over $36,000.

Networking Reception: After the CE sessions, attendees gathered for the HVBA Benefit Roadshow Networking Reception. This reception was an excellent platform for industry professionals to connect, share insights, and build long-term relationships. Brief speeches from industry leaders added value to the networking experience.

“I loved everything about the event! The CE sessions were incredibly informative, and the networking opportunities were unparalleled. The Scout experience was unique and engaging, and the charity auction was a fantastic way to give back while having fun,” said Cindi Cohn, Chief Experience Officer, of Rock Enrollment. “The food and drinks were exceptional, and the overall atmosphere was just perfect. I can’t wait to attend the next HVBA event!”

Throughout the event, attendees enjoyed a variety of five-star appetizers, food, and beverages. The culinary offerings were second to none!

“The success of this event is a testament to the dedication and hard work of the entire HVBA team. Each member played a crucial role in ensuring everything ran smoothly and exceeded expectations. From planning to execution, the team’s commitment to excellence was evident in every detail,” said Dan Robinson, President of the HVBA Advisory Board, Conference Committee Chair, and President & CEO of SONOLO. “We are incredibly proud of what we accomplished together and grateful for the support of our attendees and sponsors. These events continue to set a high standard for our HVBA Roadshows.”

A special recognition goes out to our Executive and Advisory Board Members and, equally as important, our Sponsors, Attendees, and Members who make these events possible.

“Our Dallas event was a tremendous success, bringing together industry professionals to share knowledge, build connections, and support meaningful causes. We are grateful for the enthusiastic participation and generous contributions from everyone involved,” said Robert S. Shestack, Chairman & CEO of the Health & Voluntary Benefits Association. “This event showcased the best of our community’s commitment to excellence and collaboration. Stay tuned for “Philly in the Fall”.

For further information please visit our website www.vbassociation.com. If you have any questions about sponsorship or membership, please reach out to Sarah Hunt at shunt@vbassociation.com.

By: Center for Connected Health Policy

Provider licensure exceptions particular to the use of telehealth across state lines continues to be a popular issue area for those reaching out to CCHP for technical assistance. Questions are received from providers and patients alike, and often providers ask for a list of specific states that currently allow out-of-state providers to deliver care via telehealth to in-state patients for their specific profession. In this week’s write up, we would like to drill down on this area of telehealth policy in the hopes of painting a clearer picture. Telehealth is considered rendered at the location of the patient and generally speaking individual states will require providers delivering care within their borders to have a license or some type of in-state approval. While limited licensure exemptions do exist, they vary widely (both between states and different professions), therefore there unfortunately is not a simple list that will clearly convey the complexities inherent to practicing telehealth across state lines. Nevertheless, at the bottom of this newsletter, CCHP has attempted to organize out-of-state telehealth provider policies by state into two main areas as a starting point in understanding the primary types of licensure policies that may allow out-of-state telehealth provider practice, in addition to Licensure Compacts: Limited Licensure Exceptions, andTelehealth License/Registration ProcessesBased on the latest updates to CCHP’s Policy Finder as of June 25, 2024, CCHP has compiled lists showing the states that fall into these policy areas at the bottom of this write-up. LIMITED LICENSURE EXCEPTIONSLimited exceptions to full in-state licensure are the most popular way for states to allow an out-of-state provider to deliver telehealth services to their residents (besides interstate licensure compacts), however they are often very narrow and limited to specific circumstances and provider types. For instance, even if CCHP included a state within the below limited licensure exception list, it is still possible that the exception doesn’t apply to all provider types or patients. One common exception found throughout some state licensure requirements doesn’t actually apply directly to patients at all, rather it only exempts providers consulting with other providers that may not be licensed in the same state (i.e. New Jersey). Other exceptions often focus around continuity of care allowances, such as licensure exceptions for already established provider-patient relationships like in South Carolina, Virginia, and Washington. Exceptions also may be allowed for infrequent interactions, such as telehealth services occurring less than 10 days a year or involving less than 10 patients a year, as is the case of Alabama, or in instances of emergency, such as in the District of Columbia. Additionally, there are exceptions specific to specialized care, such as mental health services (Colorado, for example) or treatment related to life-threatening diseases. For instance, California has historically been one of the states with the least allowances for out-of-state providers, only having an exception for provider consultations until last year, when the state adopted an allowance for out-of-state physicians treating patients with life-threatening diseases. In total, 29 states currently have limited licensure exceptions. However, they vary widely and must be reviewed carefully to ensure applicability and compliance. In addition, 9 states have adopted both limited licensure exceptions in addition to a telehealth registration process, therefore those states will appear in both lists below, with a notation that they fall under each. TELEHEALTH LICENSE/REGISTRATION PROCESSOverall, 21 states currently have some kind of telehealth registration process, including Arizona and Florida, though the term “registration process” may go by a different name and requirements do vary. Whether called a telemedicine license, registration, certification, permit or waiver, these policies are also often specific to certain providers and have varying requirements and fees similar to the licensure process. Generally, registration processes seek to ensure board oversight and jurisdiction over out-of-state providers operating in the state, while including additional limitations on their practice, such as prohibiting them from opening an office and providing in-person care in the state. CAN’T FORGET COMPACTSCompacts are also a very popular way for states to adopt exceptions to full in-state licensure for purposes of out-of-state telehealth providers. In fact, as of the date of this newsletter, only 5 jurisdictions are not a current member of any compact that CCHP is tracking. In addition, of the 12 jurisdictions with neither limited licensure exceptions nor registration processes, 9 are members of at least one compact. CCHP is currently tracking twelve compacts:Advanced Practice Registered Nurses CompactAudiology and Speech-Language Pathology Interstate CompactCounseling CompactDietitians CompactEmergency Medical Services Personnel Licensure Interstate CompactInterstate Medical Licensure CompactNurses Licensure CompactOccupational Therapy Licensure CompactPhysician Assistant Licensure CompactPhysical Therapy CompactPsychology Interjurisdictional CompactSocial Work Licensure CompactEach compact structure varies and is specific to different provider types, but generally compacts seek to allow providers to meet only one approval process (through the Compact) to participate in multiple states (Compact member states). Note that the Interstate Medical Licensure Compact (IMLC), in particular, operates a bit differently from the others, in that it focuses more on streamlining and expediting licensure approval with each state. Regardless of structure, compacts are also a key component to out-of-state telehealth provider policies. Some states, however, may have more hesitation than others in becoming members due to the fact that the same statutory language used to legislatively enact a compact must be adopted across each member state, limiting the ability for specific states to amend compact language to meet their particular policy goals. For more information on which states participate in which compacts, view CCHP’s licensure compacts page. LIMITATIONS TO THE LIMITATIONSEven if a state is listed as having a limited licensure exception or registration process, given the nuances of such policies and the presence of additional policies that may apply to the care (such policies related to consent and/or prescribing), it is always best for providers to check with both the appropriate board in their state and the state the patient will be located in at the time of the visit to ensure full compliance. It is also important to note that compliance with state licensure and practice requirements doesn’t necessarily ensure insurer coverage of services provided. Payer policies for out-of-state providers also vary widely and may include additional locational limitations. CCHP tracks Medicaid policies for out-of-state providers, and as it pertains to Medicare, there is generally just a requirement to comply with state laws. When it comes to private payers, providers should check always with individual private payers directly, as their rules vary more widely. Licensure By the Numbers (as of 6/25/24)29 States have limited licensure exceptions21 Jurisdictions have telehealth registration processes9 States have both limited exceptions and a telehealth registration process12 Jurisdictions don’t have specific exceptions/registration (9 are members of compacts)5 Jurisdictions are members of no compacts3 Jurisdictions have no exceptions/registration/compactTHE LISTS The states listed below are hyperlinked back to the licensure topic area in CCHP’s online policy finder for that specific state making it easy for readers to view the particular laws that are being referenced in regard to the licensure exception and/or registration process in place, as well as any related requirements. These lists are not meant to be definitive and it is important to look at each state law closely to determine how to meet their particular requirements. CCHP does not maintain a list of exceptions particular to types of providers, and again, advises providers to contact the board that regulates their profession in both their own state and the state where the patient will be located at the time of the visit to ensure compliance. These laws are constantly changing and some policies may not yet be fully implemented.   LIMITED LICENSURE EXCEPTIONSAlabamaAlaskaArkansasArizona (also has registration process)CaliforniaColoradoDistrict of Columbia (also has expedited licensure agreement with VA & MD)Delaware (also has registration process)Florida (also has registration process)Hawaii (specific to provider-to-provider consultations)Idaho (also has registration process)IllinoisIowaKentuckyMaryland (also has expedited licensure agreement with VA & DC)MichiganMinnesota (also has registration process)MississippiMissouriNew Hampshire (also has tele-pass psychology license process)New Jersey (specific to provider-to-provider consultations)Oregon (also has telemedicine license process)Rhode IslandSouth Carolina (also has registration process)UtahVirginia (also has expedited licensure agreement with MD & DC)WashingtonWest Virginia (also has registration process)WyomingCCHP always suggests confirming applicability and related requirements with State Licensure Boards.   TELEHEALTH LICENSE/REGISTRATION PROCESSArizona (also has limited licensure exceptions)Delaware (also has limited licensure exceptions)Florida (also has limited licensure exceptions)GeorgiaIdaho (also has limited licensure exceptions)IndianaKansasLouisianaMaineMinnesota (also has limited licensure exceptions)New Hampshire (also has limited licensure exceptions)NevadaNew MexicoOklahomaOregon (also has limited licensure exceptions)Pennsylvania  (specific to adjoining state physicians)TennesseeSouth Carolina (also has limited licensure exceptions)VermontVirgin IslandsWest Virginia (also has limited licensure exceptions)See State Licensure Board websites for implementation and license issuing status and other related requirements.   NO EXCEPTIONS/TELEHEALTH REGISTRATION PROCESSES States below indicated with an * are states that despite not having a licensure exception or registration process in place, are members of various compacts. Connecticut * (Technically CT does have a law on the books regarding exceptions, however exceptions are only in effect under a specific Commissioner order, and previous orders have since expired)MassachusettsMontana *Nebraska *New YorkNorth Carolina *North Dakota *Ohio *Puerto RicoSouth Dakota *Texas * (TX did have a telemedicine license process in place, however, the TX Medical Board has since placed on their website that the issuing of telemedicine licenses has been suspended)Wisconsin *See each Compact website for implementation, license issuance status and other related requirements.   NO COMPACTS States below indicated with an * are states that despite not having a compact, do have limited licensure exceptions. Alaska *California *MassachusettsNew YorkPuerto RicoFor more information on state licensure laws and potential exceptions, please review CCHP’s Cross-State Licensing web page and Licensure Compacts page.

Source: Center for Connected Health Policy, personal communication, July 9, 2024

By: Self-Insurance Institute of America, Inc.

On June 28th, the Supreme Court – in a 6 to 3 ruling – overturned the “Chevron Deference Doctrine.” As we have reported, the Chevron Deference Doctrine is a 40-year-old judicial precedent directing courts to defer to a Federal Department’s interpretation of a statute when the Department develops implementing regulations. Here, the court must uphold the regulation if evidence shows that the Federal Department reasonably interpreted the statute, even if the court disagrees with how the statute was interpreted.

It is currently unclear how far-reaching this Supreme Court ruling might turn out to be, but we are already seeing policymakers respond. For example, Ranking Member of the Senate HELP Committee, Senator Cassidy (R-LA), sent a letter to HHS asking how the decision to invalidate the Chevron Deference Doctrine will affect existing and future regulations implementing the Federal surprise billing regulations. Will we see more lawsuits from providers challenging the Federal IDR process and/or seeking to nullify the Qualifying Payment Amount?

Self-insured plans and insurance carriers are also asking whether the dismantling of the Chevron Deference Doctrine will impact the proposed Mental Health Parity and Addiction Equity Act (MHPAEA) regulations. Payers have already argued that the proposed requirements and mathematical tests are inconsistent with the statute and contrary to Congress’s original intent, making these proposed MHPAEA regs ripe for a legal challenge once they are finalized. 

Could we also see lawsuits filed against less controversial regulations that have long been opposed by a particular sector of the healthcare industry? Take the Transparency in Coverage Rule, for example, which has been – and effectively continues to be – opposed by the insurance carrier community.  

Any regulations issued by the next Administration (regardless of whether it is a Biden 2nd Term or another Trump Presidency) will also have a perilous journey through the process, as stakeholders – whether politically motivated or based on practical merits – will likely be quick to challenge them.

This ruling will also put immense pressure on Congress when writing and considering legislation that serves as the underlying statute that a Federal Department must implement through a regulation. Congress won’t be able rely on the Federal Departments to fill-in-the-blanks that Congress inadvertently or purposefully left open. Congress also won’t be able to direct the Federal Departments to develop a regulatory process without spelling out in the statute specific guidelines and parameters the Department must follow

SIIA will continue to monitor how policymakers and healthcare stakeholders respond to the Supreme Court’s decision to overturn the Chevron Deference Doctrine. If you have any questions, feel free to contact Chris Condeluci at (ccondeluci@siia.org) or Anthony Murrello (amurrello@siia.org).

SOURCE: Self-Insurance Institute of America, Inc. personal communication, July 3, 2024)