For more information about this blog post, please contact Ryan L. O’Neill, Labinot Alexander Berlajolli, Jessica T. Osterlof or Samantha T. Baccaro.

Many waivers and flexibilities were put into place by federal and state governments to better ensure necessary services could be provided to patients during the COVID-19 pandemic. With the end of the public health emergency, the federal and state governments have had to review and revise such policies, including telehealth access and services. Some flexibilities have expired and were not renewed. For example, the Office of Civil Rights (“OCR”) previously revoked four notifications (88 FR 22380) regarding its enforcement discretion as to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), such as, when OCR allowed providers to use non-public facing on-line or web-based applications to conduct telemedicine visits that were not HIPAA compliant.

Other tools have been released to provide guidance on telehealth. The below topics discuss such policies in further detail on the federal level. Our previous posting addressed New Jersey’s extension of payment parity for telemedicine through December 31, 2024.

CMS Final Rule regarding Telehealth Flexibilities for 2024

On November 2, 2023, the Centers for Medicare and Medicaid Services ("CMS") issued its calendar year ("CY") 2024 Medicare physician fee schedule ("PFS") final rule, which specifically clarifies questions with regard to telehealth services. The policy changes within the PFS are effective on or after January 1, 2024. The below subtopics cover a majority of the policy changes and clarifications within the telehealth space.

Telehealth Remote Patient Monitoring Services and Extension of Telehealth-Related Flexibility

For CY 2024, health and well-being coaching services will be added to the Medicare Telehealth Services List on a temporary basis for CY 2024, and Social Determinants of Health Risk Assessments on a permanent basis. The final rule removes some ambiguity by extending certain telehealth flexibilities that were within CMS’ discretion and implementing statutory extensions that were included in the Consolidated Appropriations Act ("CAA"), postponing a permanent decision on such flexibilities another year. The PFS, which governs Medicare payment for physician services, sets forth facility and non-facility rates for payment.

With regard to the CAA and the PFS, and as discussed in a CMS telehealth webpage, some flexibilities were extended to December 31, 2024 and some were made permanent, including:

• the temporary expansion of the scope of telehealth originating sites for services furnished via telehealth to include any site in the United States where the beneficiary is located at the time of the telehealth service, including an individual’s home, has been extended through December 31, 2024;
• the expansion of the definition of telehealth practitioners to include qualified occupational therapists, qualified physical therapists, qualified speech-language pathologists, and qualified audiologists has been extended through December 31, 2024;
• the continued payment for telehealth services furnished by Rural Health Clinics (“RHC”) and Federally Qualified Health Centers (“FQHC”) using the methodology established for those telehealth services as distant site providers during the COVID-19 PHE has been made permanent;
• delaying the requirement for an in-person visit with the physician or practitioner within six months prior to initiating mental health telehealth services, and again at subsequent intervals as the Secretary determines appropriate, as well as similar requirements for RHCs and FQHCs, has been extended through December 31, 2024; and
• Rural Emergency Hospitals ("REHs") as eligible originating sites for telehealth has been made permanent.

Additionally, beginning in CY 2024, telehealth services furnished to patients in their homes will be paid by Medicare at the non-facility PFS rate, with a new modifier, "POS 10."

CMS will continue to define direct supervision to permit the presence and immediate availability of the supervising practitioner through real-time audio and video interactive telecommunications through December 31, 2024. CMS stated that it believes that this extension will align the timeframe of this policy with many of the previously discussed PHE-related telehealth policies that were extended under provisions of the CAA.

Telehealth Services in Teaching Settings, OTPs, and DSMT

To be consistent with the telehealth policies that were extended under the CAA, CMS exercised enforcement discretion through the end of CY 2023 and are finalizing a policy to continue to allow teaching physicians to use audio/video real-time communications technology to be present when a resident furnishes Medicare telehealth services in all residency training locations through the end of CY 2024. This virtual presence will meet the requirement that the teaching physician be present for the key portion of the service.

For CY 2024, CMS will allow Opioid Treatment Programs ("OTPs") to bill Medicare under the Part B OTP benefit for furnishing periodic assessments via audio-only telecommunications when video is not available to the beneficiary, to the extent that the use of audio-only communications technology is permitted under the applicable SAMHSA and DEA requirements at the time the service is furnished, and all other applicable requirements are met.

CMS will allow the entirety of Diabetes Self-Management Training ("DSMT") Services furnished by Registered Dietitians ("RDs") and Nutrition Professionals services to be furnished via telehealth.

The above changes are reflected in the 2023 version of the Consolidated Appropriations Act, and the CMS CY 2024 Physician Fee Schedule, as discussed above. The temporary flexibilities extension was effective January 1, 2024, and are now scheduled to end December 31, 2024.

The full text of the final rule can be accessed here and the CMS Fact Sheet discussing the final rule can be accessed here.

OIG Federal Toolkit to Assess Telehealth Program Integrity Risks

The U.S. Department of Health and Human Services ("HHS") Office of the Inspector General ("OIG)" previously released a federal toolkit, Analyzing Telehealth Claims to Assess Program Integrity Risks, which aims to help healthcare stakeholders analyze their telehealth claims data to assess program integrity risks associated with telehealth services. The toolkit aims to help public and private sector partners, such as Medicare Advantage plan sponsors, private health plans, and State Medicaid Fraud Control Units, in analyzing their own telehealth claims data to assess the integrity risks associated with telehealth-related billing.

The toolkit, by helping stakeholders get a better understanding of program integrity risks associated with telehealth services, will help them to develop necessary safeguards and address individual cases of potential fraud, waste, and abuse. OIG felt this necessary due to the large increase in telehealth usage during and following the COVID-19 pandemic, which has increased the risk of potential fraud and abuse.

Specifically, the toolkit details five steps stakeholders should take when analyzing telehealth claims and provides seven measures that stakeholders can use to analyze claims data.

The full text of the toolkit can be accessed here.