Key Telehealth Updates in the CY 2025 Physician Fee Schedule Proposed Rule

On July 31, 2024, the Centers for Medicare & Medicaid Services (“CMS”) issued its proposed rule (“Proposed Rule”) for the 2025 Medicare Physician Fee Schedule, which includes implications for telehealth services reimbursable by Medicare. Although the majority of telehealth waivers enacted during the COVID-19 public health emergency (the “PHE”) are set to expire at the end of 2024 in the absence of legislative action, CMS has proposed to leave certain key flexibilities in place, including the allowance for physicians and other practitioners to furnish remote “direct supervision” through their immediate availability via audio-video technology.

Comments are due on September 9, 2024.

PHE Telehealth Flexibilities Expiring for 2025

CMS issued a number of telehealth waivers during the PHE, including flexibilities around the definitions of “originating site” and “audio-only telehealth”, and the types of practitioners who may bill for Medicare telehealth services. The 2023 Consolidated Appropriations Act (“CAA”) extended certain telehealth flexibilities through December 31, 2024.[1] In the Proposed Rule, CMS discusses the impact of telehealth flexibilities on beneficiary access to care and notes that the originating site and service site flexibilities extended by the CAA are set to expire on December 31, 2024. CMS seeks comments on what impact, if any, the expiration of current flexibilities may have on overall service utilization for CY 2025. Absent Congressional action, however, CMS will not (and takes the position that it cannot) extend these flexibilities into 2025. Nevertheless, CMS has proposed certain changes within its regulatory authority to maintain other important flexibilities for telehealth services.

Proposed Flexibilities for 2025

Extended Allowance of Remote “Direct Supervision”

Certain services, including most incident-to services and many diagnostic tests, must be furnished under specific minimum levels of supervision by a physician or other practitioner. When services require “direct supervision”, the supervising practitioner must be “immediately available” to furnish assistance and direction. Under the PHE flexibilities, as extended through 2024, “direct supervision” is permitted through virtual presence using audio/video real-time communications technology, as long as the supervising practitioner is immediately available to engage via audio/video technology (excluding audio-only). CMS proposes continuing to define “direct supervision” to permit the presence and “immediate availability” of the supervising practitioner through real-time audio and visual interactive telecommunications through December 31, 2025.

CMS also proposes making this flexibility permanent for certain services. Specifically, CMS proposes permanent adoption of the definition of “direct supervision” to include “immediate availability” of the supervising practitioner through audio/video real-time communications technology (excluding audio-only) only for the following incident-to services:

• services furnished incident to a physician or other practitioner’s service when provided by auxiliary personnel employed by the billing practitioner and working under their direct supervision, and for which the underlying HCPCS code has been assigned a professional component or technical component indicator of “5”, and
• services described by CPT code 99211 (Office or other outpatient visit for the evaluation and management of an established patient that may not require the presence of a physician or other qualified health care professional).

Extended Flexibility to Use Enrolled Location as “Distant Site” Address

During the PHE, and through 2024, telehealth practitioners are permitted to bill from their currently enrolled location instead of their home address when providing telehealth services from their home. In the Proposed Rule, CMS proposes extending this flexibility through December 31, 2025 due to practitioners’ safety and privacy concerns relating to listing home addresses on enrollment forms.

Revision of “Telecommunications System” Definition to Allow Permanent Use of “Audio-Only” in Certain Circumstances

PHE waivers established flexibilities for the use of interactive telecommunications systems to furnish telehealth services. In the Proposed Rule, CMS proposes to allow some continued flexibility for the technological mode through which telehealth services may be provided by revising the definition of “Interactive Telecommunications System” to also include “two-way, real-time audio-only communication technology for any telehealth service furnished to a beneficiary in their home if the distant site physician or practitioner is technically capable of using an interactive telecommunications system as defined as multimedia communications equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication, but the patient is not capable of, or does not consent to, the use of video technology” beginning January 1, 2025. Claims which meet these requirements and are furnished via audio-only telehealth should be submitted with CPT modifier “93”.

Of note, PHE waivers currently allow any site in the United States, including the patient’s home, to serve as an originating site. After the waivers expire on December 31, 2024, the patient’s home may be an originating site only for (1) the diagnosis, evaluation, or treatment of a mental health or substance use disorder or (2) monthly End-Stage Renal Disease clinical assessments. This change may substantially limit the impact of the proposed revision to the definition of Interactive Telecommunications System.

New Additions to the List of Telehealth Services

CMS proposed adding certain codes to the Proposed List of Telehealth Services (the “List”) on a provisional basis. The List includes the services that are payable under the Medicare Physician Fee Schedule when furnished via telehealth. No codes are proposed to be added on a permanent basis, but the proposed provisional additions include:

• HCPS Code G0248 (Home International Normalized Ratio Monitoring)
• HCPS Code G0011 (PrEP for HIV)
• HCPS Code G0013 (PrEP for HIV)
• HCPS Codes GCTD1 – 3 (Caregiver Training In Direct Care Strategies and Techniques)
• HCPS Codes GCTB1 – 2 (Individual Behavior Management/Modification Caregiver Training)
• CPT Codes 97550-97552 (Caregiver Training in Strategies To Facilitate Patient Functional Performance in the Home or Community)
• CPT Codes 96202 – 96203 (Group Behavior Management/Modification Caregiver Training)

No Recognition of New AMA Telemedicine Evaluation and Management (E/M) Services Codes

The American Medical Association (“AMA”) recently revised the CPT Codebook and valued seventeen new codes (9X075 – 9X091) to describe telemedicine Evaluation and Management (“E/M”) services. CMS proposes to decline recognizing and paying for the new codes because they mirror existing office/outpatient E/M codes. For those new codes, CMS also proposes assigning a procedure status indicator of “I” to indicate that there is a more specific code that should be used for Medicare purposes.

Other Takeaways

While the Proposed Rule offers certain important continued flexibilities for telehealth providers, others are set to expire at the end of this year. Although a number of laws have been introduced to extend or permanently adopt these policies, providers currently face a complex patchwork of expired and extended telehealth waivers, resulting in intricate compliance obligations for providers and potentially limiting access to care for patients. We will continue monitoring for updates and providers with questions or seeking counsel may contact a member of the Sheppard Mullin Healthcare Team.

FOOTNOTES

[1] For additional information on PHE telehealth waivers currently in place through 2024 and the 2023 CAA please see the following resources: CMS Updates List of Telehealth Services for CY 2023 | Healthcare Law Blog (sheppardhealthlaw.com) and Key Healthcare Provisions of the Consolidated Appropriations Act, 2023 | Healthcare Law Blog (sheppardhealthlaw.com).