Federal Telehealth Flexibilities Extended

On 12/29/22 the federal FY23 Omnibus package was signed into law. This legislation includes several provisions that will impact billing Medicare for services that previously were contingent upon the Public Health Emergency.

Telehealth Flexibilities Extended

Telehealth flexibilities extended permanently:

  • Medicare reimbursement for mental health telehealth services (including audio-only services in some cases), provided that there is an in-person visit within the first six months of an initial telehealth visit and every 12 months thereafter (with certain exceptions). Implementation of this in-person requirement is delayed until Jan. 1, 2025.  

Telehealth flexibilities extended for two years through 12/31/24:

  • Expanding the originating site to include any site at which the patient is located, including the patient’s home;
  • Extending the ability for federally qualified health centers (FQHCs) and rural health clinics (RHCs) to furnish telehealth services;
  • Delaying the in-person requirement for mental health services furnished through telehealth; and
  • Extending coverage and payment for audio-only telehealth services 

Telehealth flexibilities available through the calendar year in which the PHE ends:

  • Virtual presence for direct supervision is available through the end of the calendar year the PHE ends, though CMS continues to consider comments regarding this issue for potential future PFS rulemaking.

Telehealth flexibilities impacting all services and ending immediately when the PHE ends:

  • During the COVID public health emergency, HHS Office for Civil Rights (OCR) applied enforcement discretion to telehealth providers, allowing them to utilize any non-public facing remote communication product, even if they don’t fully comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).  OCR has recently clarified in a FAQ document that the enforcement discretion will remain in effect until the Secretary of HHS declares that the public health emergency no longer exists, or upon expiration date of the declared PHE.  OCR will issue a notice to the public when it is no longer exercising its enforcement discretion.
  • During the emergency, providers were able to prescribe controlled substances without an in-person examination.  This flexibility will expire with the end of the PHE, requiring providers to adhere to strict rules.  In most cases this will require a patient to be located in a doctor office or hospital registered with the DEA to be prescribed a controlled substance via telehealth.  A proposed rule would create an additional permanent exception for prescribing buprenorphine in an Opioid Treatment Program (OTP) but has not yet been finalized.