CY 2023 Medicare Part B Physician Fee Schedule: End of COVID-19 Telehealth Waivers

By June 10, 2023, Medicare Part B providers will need to be prepared for the end of COVID-19 waivers for telehealth services. On Oct. 13, 2022, the Secretary of the U.S. Department of Health and Human Services (“HHS”) extended the COVID-19 public health emergency declaration (“PHE”) which will end on Jan. 11, 2023. In the CY 2023 Medicare Physician Fee Schedule final rule, HHS has extended the telehealth waivers for an additional 151 days after the end of the PHE. Providers are encouraged to prepare in advance for the end of the telehealth waivers.

The COVID-19 Telehealth Waivers

In response to the COVID-19 pandemic, the Secretary of HHS declared a public health emergency (PHE). The PHE declaration allowed the Secretary of HHS to issue a blanket waiver for telehealth services covered under Medicare Part B. The blanket waiver temporarily relaxed statutory limitations and expanded covered telehealth services. The blanket waiver for telehealth services includes:

1. Patients can receive telehealth services from home;
2. Patients can receive telehealth services from anywhere, urban or rural areas;
3. Patients can receive telehealth services by audio only (e.g. telephone);
4. Added new services to list of approved Medicare telehealth services;
5. Expanded list of eligible providers to include anyone who can bill Medicare for professional services (e.g. physical therapists, occupational therapists, or speech therapists); and
6. Waived requirement for out-of-state providers to be licensed in the state where patient receives the telehealth services.

Medicare’s Telehealth Rule

The Social Security Act (“Act”) authorizes but strictly limits what telehealth services Medicare will approve and pay providers that perform them. Any permanent expansion of the covered telehealth services will require the United States Congress to amend the Social Security Act. HHS lacks the authority, even through its rule-making powers, to make any permanent expansion of the allowed telehealth services. As discussed above, a PHE declaration allows the Secretary of HHS to issue a blanket waiver and relax statutory limits. Under the Act, Medicare will cover telehealth services provided  the following conditions are met:

1. The patient is in a qualified rural area;
2. The patient is located at a qualified site;
3. The services are performed by a qualified provider eligible to furnish and receive Medicare payment for telehealth services;
4. The patient and qualified provider meet through a real-time audio and video interactive telecommunication system;
5. The telehealth service is on the current list of covered Medicare telehealth services; and
6. The provider is licensed in the state where the patient will receive the telehealth services.

If the provider fails to meet these conditions, Medicare Part B will not pay for the telehealth service. The real-time audio and visual interaction through a telecommunications system satisfies the face-to-face requirement for an allowed service. The Act does not authorize payment for in-home patients, urban patients, or services provided by certain practitioners (e.g. registered nurse, physical therapist, occupational therapist, or speech therapist).

The End of COVID-19 Telehealth Waivers

When the blanket waiver ends, Medicare’s statutory limitations on covered telehealth services will return, and providers will no longer be able to bill Medicare Part B for the expanded telehealth services.  Medicare Part B providers took advantage of the COVID-19 waivers and either began or expanded telehealth services for Medicare Part B patients across the Country. While there is much discussion and pending bills in Washington D.C. to make temporary waivers for telehealth services permanent, providers should not ignore the impending end of the waivers.

For now, providers will need to assess the impact on their telehealth services and plan to comply with the Act’s telehealth restrictions. Beyond Medicare Part B, providers should look to evolving opportunities to continue to provide telehealth services through Medicare Part C’s managed care plans and commercial health insurance plans which cover telehealth services. Providers will need to analyze Medicare Part C and commercial health insurance plans’ telehealth coverage rules and take the necessary steps to meet those rules. No less important, providers must review and analyze the telehealth rules for each state where services will be offered or performed. This includes rules regarding:

1. Licensure for telehealth services;
2. Establishing a physician-patient relationship;
3. Obtaining a patient’s informed consent;
4. Verification or validation of provider and patient;
5. Patient’s privacy and medical record keeping; and
6. Remote prescribing.

Clark Hill’s Healthcare team is ready to assist providers in developing new or expanding existing telehealth services at the local, state, or national level in compliance with Medicare and Medicaid rules, state law, and commercial health insurance plans.

For further information, please contact the author, Jose Vela Jr. at jvela@clarkhill.com.

The views and opinions expressed in the article represent the view of the author and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is it intended to be a substitute for professional legal advice.