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Waivers/Flexibilities from PHE
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Status after PHE
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RELATIONSHIP WITH PATIENT
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Telehealth could be provided for both new and established patients.
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There is no restriction on new versus established patients for telehealth.
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PATIENT LOCATION
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During the PHE, the rural and originating site requirements for telehealth services were waived. These waivers allowed patients to receive telehealth in any geographic region and in their homes. Prior to the PHE, telehealth was only covered in rural locations and at originating sites, which were defined as facilities such as hospitals, physician offices, and skilled nursing facilities (SNFs).
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Starting January 1, 2025, originating site requirements and rural requirements for telehealth go back into effect (except for mental health and substance abuse services), meaning that telehealth will only be covered in rural areas and the patient cannot be in their home. Section 4113 (a) of the Consolidated Appropriations Act, 2023.
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PAYMENT RATES
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During the PHE, providers received Medicare Physician Fee Schedule (MPFS) payment as if services had been provided in person (at the nonfacility-based payment rate in offices).
Prior to the PHE, providers received the facility-based payment rate under the physician fee schedule for telehealth services provided by office-based services. CMS Interim Final Rule 1 (April 6, 2020).
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Beginning January 1, 2024, practitioners’ services will be paid at the facility rates for telehealth office-based services (approximately 25–30% less than the in-person office-based rates). 2023 Physician Fee Schedule Final Rule.
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TELEPHONE EVALUATION AND MANAGEMENT (E/M) AND AUDIO-ONLY
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During the PHE, payment for audio-only services was allowed. Telephone-only E/M codes (99441-43) were paid at rates equivalent to E/M codes (99212-14) (increasing payment for these codes from a range of about $14 to $41 to about $46 to $110). CMS Interim Final Rule 1 (April 6, 2020).
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After December 31, 2024, CMS will not cover audio-only services (telephone E/M) except for mental health services. Section 4113 (e) of the Consolidated Appropriations Act, 2023 Modifier must be used to indicate audio-only services. 2022 Physician Fee Schedule Rule.
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LICENSURE
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During the PHE, CMS waived the Medicare requirement that, as a condition of payment, physicians and nonphysician practitioners must be licensed in the state where they are providing telehealth services. State licensure requirements still applied, and practitioners were still required to be Medicare providers. If a state does not allow practice across state lines, the practitioner is unable to do so. CMS Interim Final Rule 1 (April 6, 2020).
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After the PHE ends, CMS regulations will continue to allow for a total deferral to state law. There is no CMS requirement that a provider must be licensed in their state of enrollment. The states will determine whether a provider is allowed to provide services in their state. The state laws that apply are based on where the patient is located. Physicians and Other Clinicians: CMS Flexibilities to Fight COVID-19.
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REPORTING ADDRESS OF THE LOCATION OF PROVIDER
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During the PHE, practitioners could render telehealth services from their home without reporting their home address on their Medicare enrollment. Physicians and Other Clinicians: CMS Flexibilities to Fight COVID-19.
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Practitioners can permanently render telehealth services from their homes. Practitioners rendering telehealth services from their homes will be required to report their home address on their Medicare enrollment. Physicians and Other Clinicians: CMS Flexibilities to Fight COVID-19.
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ADDITION OF SERVICES TO TELEHEALTH LIST
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During the PHE, CMS added many codes to the list of telehealth services payable under the Medicare Physician Fee Schedule. https://www.cms.gov/medicare/medicare-general-information/telehealth/telehealth-codes
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CMS expanded telehealth services by permanently adding certain services to the Medicare telehealth list, including newly established E/M visit complexity code and prolonged services codes, and others.
2023 Physician Fee Schedule Final Rule.
CMS created a temporary category of services added to the Medicare telehealth list covering some of the services that CMS allowed during
the PHE. These services will remain on the telehealth list through the end of calendar year 2023, but there is a possibility that CMS could further extend to align with the 2-year extension of other telehealth waivers. 2022 Physician Fee Schedule Final Rule.
CMS will continue to include all services on the telehealth list until 151 days after the end of the PHE. (There is the possibility that CMS could extend further to align with the 2-year extension of other telehealth waivers.) 2023 Physician Fee Schedule Final Rule.
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HIPAA COMPLIANCE
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During the PHE, HHS Office for Civil Rights did not enforce penalties for HIPAA noncompliance for providers that make good-faith provisions regarding telehealth, which allowed telehealth providers to use a broader range of remote communications technologies even when those products did not fully comply with HIPAA requirements. Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID–19 Nationwide Public Health Emergency.
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After the PHE ends, telehealth platforms must be HIPAA compliant.
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COST SHARING OBLIGATIONS
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During the PHE, the Office of the Inspector General (OIG), within the U.S. Department of Health and Human Services, did not enforce cost sharing requirements for telehealth services provided to Medicare beneficiaries. OIG Policy Statement.
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After the PHE ends, cost sharing requirements (e.g., coinsurance and deductible) will be enforced.
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