The Year Ahead: Telehealth in 2021 - Will Auld Acquaintance Be Forgot?

As the end of 2020 approaches, the melody to “Auld Lang Syne” inevitably comes to mind. The meaning of this song is particularly appropriate as we consider what will stay, and what will pass when it comes to telehealth in America in 2021.

Rapid – but Temporary – Expansion of Telehealth in 2020

2020 and the COVID-19 Public Health Emergency (PHE) brought about the first meaningful experience with telehealth for many health care practitioners as well as many patients. The initial stages of the PHE set the groundwork for the unprecedented, rapid expansion of telehealth with the Department of Health and Human Services (HHS) relaxing certain Health Insurance Portability and Accountability (HIPAA) limitations to facilitate the provision of telehealth services. The Centers for Medicare & Medicaid Services (CMS) greatly expanded coverage of telehealth services to allow all beneficiaries, not just those in rural areas, to access telehealth services from many locations, including their own homes. As the PHE continued, CMS also increased patient access by temporarily allowing more types of health care practitioners to offer their services via telehealth – a change that many of these practitioners, including physical therapists, occupational therapists, and speech-language pathologists, are hoping Congress will make permanent.

As the PHE has persisted, HHS is continuing to respond, maintaining its support of telehealth. The latest among HHS’s temporary measures to increase patient access to telehealth during the PHE includes another amendment to the Public Readiness and Emergency Preparedness Act (PREP Act). The amendment, among other things, preempts state and local restrictions on telehealth to allow authorized health care practitioners to order or administer COVID-19 “covered countermeasures,” as defined by the PREP Act, across state lines to patients. Since many, but not all, states have temporarily authorized out-of-state health care practitioners to deliver telehealth to in-state patients during the PHE, this latest measure provides patients and health care providers alike with more consistency regarding access to certain telehealth services across state borders.

Permanent (and More Temporary) Changes for 2021

This latest PREP Act amendment comes on the heels of certain permanent changes (and the extension of some temporary ones) in the telehealth landscape for Medicare providers which will go into effect in January 2021. As we previously outlined in an earlier article, CMS had proposed to make permanent certain telehealth changes that have been implemented in response to the PHE. In its recently-released 2021 Physician Fee Schedule Final Rule (Final Rule), CMS did just that. At the same time, it extended certain flexibilities through 2021 or the end of the PHE, while declining to make them truly permanent. Several highlights of the Final Rule include:

1. Permanent Addition of New Codes – CMS has permanently added certain new codes to the Medicare telehealth list (on a Category 1 basis), including:
   • Group Psychotherapy (CPT 90853)
   • Domiciliary, Rest Home, or Custodial Care services, Established patients (CPT 99334-99335)
   • Home Visits, Established Patient (CPT 99347- 99348)
   • Cognitive Assessment and Care Planning Services (CPT 99483)
   • Visit Complexity Inherent to Certain Office/Outpatient E/Ms (HCPCS G2211)
   • Prolonged Services (HCPCS G2212)
   • Psychological and Neuropsychological Testing (CPT 96121)

2. Temporary Addition of New Codes – CMS has finalized its new “Category 3” basis to describe those services that are temporarily added to the Medicare telehealth list through the later of the end of the year in which the PHE ends or December 31, 2021, and has added numerous such codes that will be available in this Category. Notably, CMS added additional codes to the Category 3 list that were not included in the proposed rule, but are being finalized as such in the Final Rule.

3. Permanent Decrease in Frequency Limitations for Subsequent SNF Visits – In the Final Rule, CMS finalized a policy to allow subsequent nursing visits to be furnished via telehealth once every 14 days in the SNF This is a deviation from the “once every 3 day” limit CMS had put forth in the proposed rule based on the agency’s efforts to “find the right balance” between the desire to increase access to care through telehealth and concerns about creating a “disincentive for in-person care.” CMS did not finalize any revisions to the frequency limitations on inpatient visits or critical care consultations provided as telehealth services.

4. Continued (Temporary) Direct Supervision Via Audio/Video Technology – Until December 31, 2021, or the end of the PHE (whichever is later), CMS finalized its proposed clarification that “direct supervision” may be provided using real-time, interactive audio and video technology (audio-only is not permitted). This is applicable to a number of “incident-to” services as well as certain diagnostic services paid under the Physician Fee Schedule. As defined pre-PHE, direct supervision means that the physician or non-physician practitioner (NPP) must be present in the office suite and immediately available to furnish assistance and direction throughout the performance of the procedure. Direct supervision does not require the physician or NPP to be present in the room when the service or procedure is performed. As an interim final policy during the PHE, CMS revised the definition of direct supervision to include virtual presence of the supervising physician or practitioner using interactive audio/video real-time communications technology. The Final Rule finalizes this policy temporarily, as CMS declined to make this change truly permanent, citing patient safety and program integrity concerns. However, CMS has indicated it will consider to what degree and on what basis this flexibility could be continued following the PHE.

Looking Ahead

Although many Federal and state agencies have embraced telehealth as a critical component of expanding healthcare access during the PHE, these regulatory actions may only extend so far in making fundamental changes to national telehealth policies and coverage. Notably, several of the flexibilities implemented during the PHE cannot be made permanent by CMS unilaterally as Congressional action is required to extend them, such as payment for care to beneficiaries located at their homes and an expansion of the list of practitioners eligible to provide services via telehealth.

As fraught as 2020 has been, we will nonetheless look back on it as the year that ushered in pioneering telehealth policies in America. When it comes to telehealth, the agile manner in which the health care industry pivoted to embrace technology and meet patient care demands is among the more dramatic and positive changes that 2020 brought for health care providers and patients. As we look forward to 2021, providers should continue to follow developments in this rapidly evolving space, paying attention to what changes are here to stay, which will expire, and which may ultimately be made permanent.

As we previously discussed, the immediate expiration of certain PHE telehealth flexibilities may catch some providers off-guard when it occurs, and it will be critical to comply with the rules and requirements in effect upon expiration of the PHE—whether that means reverting to pre-PHE rules or understanding any changes to those rules that continue post-PHE. Failure to do so could result in thorny legal and compliance issues that providers should proactively endeavor to avoid—including potential overpayment obligations or False Claims Act liability.

For more information or assistance interpreting the changing legal landscape of telehealth, please contact Lanchi N. Bombalier or Madison M. Pool.