Telehealth Again in the Spotlight as Physician Fee Schedule Arrives

The Centers for Medicare & Medicaid Services (CMS) issued the review copy of the Fee Schedule, Friday, Nov. 1. Usually, the final copy appears about three weeks after the review copy, but for some reason there’s a long delay this year, with the Federal Register version set to appear on Dec. 9.

One good thing in the Final Rule is that CMS continues to permit physicians using telehealth from their home to use their office address, rather than their home address, on claims. For reasons I don’t understand, CMS is calling this permission a “temporary extension” through the end of 2025.

One reason that puzzles me is that I am not aware of any statute or regulation that would suggest the physician’s home needs to appear on the claim. As we’ve discussed before, Medicare regulations don’t specify where a service has occurred. If the patient is in Sacramento while the physician is in Los Angeles, where did the service occur? I would argue that it’s the patient’s location of Sacramento. Given the regulatory silence, I don’t think the Fee Schedule needs to offer special dispensation, and consequently, it won’t expire at the end of the year. It seems that CMS disagrees.

The Final Rule also addresses the definition of “direct supervision,” which is used for a variety of services incident to a physician, and diagnostic tests. Hopefully you know that the longstanding requirement that a physician be present in the office suite has been changed to permit supervision via smartphone or other audio-visual equipment. That definition is extended for another year, through the end of 2025. CMS is refusing to make it permanent while it considers patient safety implications. I find this somewhat strange, because if there truly were patient safety implications, permitting unsafe care through 2025 would be odd. But once again, I’m not in charge.

There are a handful of services for which CMS is going to permanently allow audio-visual supervision, including 99211s. But the key point is that through the end of 2025, direct supervision can be by smartphone.

There are several situations where the Fee Schedule focuses on the difference between “temporary” and “permanent” provisions. CMS has indicated that some telehealth codes are “permanent” and others that are “provisional.” But a permanent rule can be changed at any time. It’s no more “permanent” than life itself, so this seems like a distinction without a difference.

We are in a period of considerable uncertainty with respect to telehealth. Absent congressional action, many telehealth flexibilities expire Jan. 1. In particular, telehealth in urban areas for Medicare patients will become a near impossibility. CMS believes it lacks statutory authority to change that, and that we’re relying on action from the lame-duck Congress to fix it. Zelis folks like Matthew, Cate, and Adam will be keeping us up-to-date on that, and they have suggested that the odds of some congressional action are high.

I will close with a reminder. Direct supervision requires the ability to monitor visually, but you don’t need to actually use it. In short, the physician needn’t be like The Police, saying “every breath you take, I’ll be watching you.” As long as you have the ability to do it, you are good to go. (And CMS also said that if the patient’s technological challenges are the barrier to audio/visual communication, that generally doesn’t interfere with coverage.)