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Impacts on Telehealth When the Public Health Emergency Ends
By TherapyNotes, LLC on April 24, 2023
The Biden Administration has declared its intention to end the COVID-19 public health emergency (PHE) on May 11, 2023. There will be a 90-calendar day transition period which will expire at 11:59 p.m. on August 9, 2023. The PHE was put in place when the pandemic began, offering numerous flexibilities to help doctors and patients cope during the unprecedented times.
While certain telehealth waivers will remain in place after PHE ends, many leniencies will either change or stop. Some of these changes will take place right away, some after the 2023 calendar year ends, and others after 2024. In order to help you stay fully compliant with the pending transition, here is a timeline and several important takeaways of what is to come.
What changes will be enforced starting August 10, 2023:
1. Telehealth and In-Person care will no longer be treated equally.
During the pandemic, the Centers for Medicare & Medicaid Services (CMS) increased reimbursements for telehealth services in non-facility settings (for example, a patient’s residence), bringing those costs in line with payments for in-person treatments. Once the PHE ends, telehealth rates should likely return to pre-pandemic levels.
2. The Ryan Haight and Telemedicine Controlled Substances Act in-person exam requirement will be reinstated.
The Ryan Haight Act of 2008 was put in force to prohibit the prescription of controlled substances over the internet. It required the prescribing practitioner to first conduct at least one in-person medical evaluation. This stipulation was waived during the pandemic, allowing patients to bypass the step and receive their medication through telemedicine.
After the PHE ends, the in-person treatment requirement will be reinstated. If a patient has never been seen in-person by their prescriber (meaning that the patient started their treatment remotely, after the PHE was initiated), then the patient will no longer be able to receive certain prescriptions without first seeing their provider in person. Patients unable to visit their provider in person may have to transfer care to a local provider.
3. Telehealth and Remote Patient Monitoring Copayment Waivers will cease.
During the PHE, health care providers were not subject to administrative sanctions under the federal Anti-Kickback Statute or the Civil Monetary Penalty and exclusion laws for reducing or waiving cost-sharing amounts (such as copayments or deductibles) for telehealth services or remote patient monitoring (RPM) services.
After the public health emergency, health care providers delivering telehealth or RPM services to Medicare beneficiaries may no longer decrease or waive cost-sharing requirements for such services. Thus, digital health companies will need to ensure they have a mechanism in place to make sure these fees are both charged and collected.
4. Remote Patient Monitoring Services will once again be limited to "established patients."
During the pandemic, the CMS waived the “established patient” requirement which allowed for practitioners to bill for RPM for new patients. Moving forward, RPM Services will once again be limited only to "established patients." Physicians will first have to conduct new patient evaluation and management service before rendering RPM services.
5. HIPAA-related Enforcement Discretion will end.
During the PHE, providers were able to employ telehealth in good faith, even if their platforms or software did not comply with Health Insurance Portability and Accountability Act (HIPAA) regulations.
Starting August 10th, the Office for Civil Rights (OCR) will commence enforcing fines against providers for noncompliance with HIPAA laws regarding technology usage.
After the 2023 calendar year, virtual direct supervision is scheduled to end.
During the PHE, direct supervision rules were altered to allow for remote supervision using real-time audio-visual technology. After the 2023 calendar year, this permission is set to end.
Changes to occur after 2024:
Thanks to the Consolidated Appropriations Act (CAA) of 2023, the following telehealth flexibilities will remain in place through the end of 2024:
The in-person prerequisite for mental health services delivered through telehealth is postponed until after December 31st, 2024.
Medicare-eligible health care providers can bill for telehealth services regardless of patient or provider location (i.e., the patient can be at home).
Audio only telehealth sessions will continue to be reimbursable.
Physical therapists, occupational therapists, speech language pathologists, and audiologists are still eligible to provide telehealth services.
The ‘Acute Hospital Care at Home’ program is still able to provide hospital services at home through telehealth.
Hospice care eligibility can still be recertified through telehealth.
Patients with high-deductible health plans and HSA (Health Savings Accounts) are eligible for first dollar coverage for telehealth services without first needing to meet their minimal deductible.
Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) can be distant site providers for providing Medicare services, versus being limited to an originating site provider where the beneficiary is located.
* The content of this post is intended to serve as general advice and information. It is not to be taken as legal advice and may not account for all rules and regulations in every jurisdiction. For legal advice, please contact an attorney.