Congress throws a wrench in Medicare telehealth rules

Congress throws a wrench in Medicare telehealth rules

By Chuck Nelson, Associate Editor
April 12, 2021

A change in Medicare telehealth rules has come under fire from healthcare analysts following passage of the Omnibus Consolidated Appropriations Act in late December.

The provision – which requires periodic in-person visits with clients before telehealth visits will be covered – has been widely panned even as other parts of the bill were designed to expand access to telehealth coverage.

A spokesperson for The Centers for Medicare & Medicaid Services (CMS) expects the agency to address implementation of the change soon but said in March that the new rule would not take effect until after the COVID-19 public health emergency.

The provision was part of a 5,600-page appropriations bill that was signed into law in late December. Section 123 of the Consolidated Appropriations Act includes language that says, “providers must have regular in-person visits on a ‘regular interval’ to be determined by the Health and Human Services Department,” the Telebehavioral Health Institute (THI) reported on its website in February.

A portion of the rule states: “Payment may not be made under this paragraph for telehealth services furnished by a physician or practitioner to an eligible telehealth individual for purposes of diagnosis, evaluation or treatment of a mental health disorder unless such physician or practitioner furnishes an item or services in person, without the use of telehealth.”

The change is a shift away from the recent trend of increasing telehealth usage during the COVID-19 pandemic and could be problematic for many providers who have given up physical office space during this period.

“This in-person requirement doesn’t align with or reflect any applicable state laws around telehealth visits for mental health services, which do not have any such requirement,” the Healthcare Information and Management Systems Society Inc. said in an analysis of the legislation. “While it does expand access to telebehavioral health, it sets a bad precedent that assumes a person can’t establish a relationship with a mental healthcare provider via telehealth.

Further, it threatens to impact people who are home-bound, transient or have other barriers to accessing healthcare in-person.”

“While nearly all of the changes that have been made by the federal and state governments to expand telehealth as a result of the pandemic have been helpful in making telehealth more widely available to deliver medical care, section 123 appears to be illogical and care-blocking action to behavioral healthcare,” according to the Telebehavioral Institute.

“The act changes the Medicare telehealth coverage statute, expanding Medicare payment beyond substance-use disorder treatment (already required under the SUPPORT Act) to more broadly cover treatment of mental health disorders,” Nathaniel Lacktman, a partner at the Foley & Lardner law firm, wrote in a blog post.

“The in-person exam requirement is at odds with the direction that telehealth policy has moved over the last decade. It disrupts Medicare’s historical approach, which is to defer to state laws on professional practice requirements and clinical standards.”

Lacktman contends the change comes at a time when most people would support expanding Medicare coverage of these services.“The need for access to mental healthcare is high, considering the well-documented shortage of mental health practitioners nationwide, particularly in rural areas,” he wrote.

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