Pandemic-Era Telehealth Flexibilities Currently on Life Support

Medicare coverage of telehealth services is reaching a critical point as many pandemic-era flexibilities are set to expire on December 31, 2024. As it stands, after the close of the year, Medicare coverage for telehealth services will generally be limited to narrow pre-pandemic criteria that significantly constrain patient and provider eligibility. Without Congressional intervention, some patient visits currently qualifying for Medicare reimbursements may no longer qualify in the near future. Pending legislative acts would extend many of the flexibilities through the end of 2026 or beyond. Some of these bills have passed preliminary steps toward approval, but looming uncertainty causes anxiety among healthcare providers and patients, who may not obtain care at all if telehealth options become unavailable.

Before the COVID-19 pandemic, Medicare only paid for telehealth services under limited circumstances — for example, when access to in-person care was limited due to a patient’s location in a rural area. But even for these patients, there were restrictions, such as limitations on frequency (e.g. one telehealth visit every three days for subsequent inpatient visits; one telehealth visit every 30 days for subsequent nursing facility visits; and one visit per day for critical care consultations). Further, Medicare restricted reimbursement to services only performed at authorized “originating sites,” which excluded a patient’s home.

But during the pandemic, the Department of Health and Human Services (“HHS”), which oversees Medicare, waived some of these restrictions. These waivers, or “flexibilities,” were designed to ease provision of care during the public health emergency (“PHE”), under which strained healthcare resources and the advisability of social distancing forced shifts in care delivery. New flexibilities included a suspension on the requirement of an in-person visit to establish mental health care treatment, an exemption to geographic site restrictions, and authority for practitioners to provide audio-only services.

The PHE ended on May 11, 2023, prompting the phasing out of many of the telehealth coverage flexibilities. For example, e-visits and virtual check-ins, permissible for all patients during the PHE, were restricted to established patients only by end of 2023, and a pre-pandemic requirement that providers use HIPAA-compliant telehealth platforms was reinstated. Also, starting January 1, 2024, Medicare no longer paid for telemedicine appointments at the same rate as in-person visits, reverting instead to the facility rate.

But as part of the Consolidated Appropriations Act of 2023, Congress authorized an extension of some of the pandemic flexibilities through the end of December 2024, including that Medicare patients could receive telehealth services in their home, there would be no geographic restrictions on the originating site for non-behavioral/mental telehealth services, some non-behavioral/mental telehealth services could be delivered using audio-only communications platforms, and that telehealth services could be provided by all eligible Medicare providers.

In advance of expiring flexibilities, agencies are working to preserve telehealth access where they can. For example, the Drug Enforcement Administration (“DEA”) and HHS recently issued a final rule extending certain telemedicine prescribing flexibilities for one more year. The agencies will waive the in-person visit requirement before the prescribing of certain controlled substances virtually. This waiver is effective until December 31, 2025. “We continue to carefully consider the input received and are working to promulgate a final set of telemedicine regulations,” the DEA said in a statement. “However, with the end of 2024 quickly approaching, DEA, jointly with HHS, has extended current telemedicine flexibilities through December 31, 2025. The full text of the extension, entitled “Third Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications,” was submitted to the Federal Register jointly with HHS on November 15, 2024.”

In addition, the Centers for Medicare & Medicaid Services (“CMS”) has preserved some telehealth flexibilities in its Calendar Year 2025 Medicare Physician Fee Schedule Rule. This final rule reflects CMS’s goal to preserve some important, but limited, flexibilities in its authority. Through the final rule, CMS is continuing to permit certain practitioners to provide direct supervision via a virtual presence of auxiliary personnel, when required, virtually through immediate availability via real-time, audio-video technology. CMS is also finalizing temporary extensions to allow teaching physicians to be present virtually when they furnish telehealth services involving residents in teaching settings.

But CMS reiterates that, absent Congressional action, beginning January 1, 2025, the statutory limitations that were in place for Medicare telehealth services prior to the COVID-19 PHE will retake effect for most telehealth services. These include geographic and location restrictions on where the services are provided, and limitations on the scope of practitioners who can provide Medicare telehealth services. After that date, if Congress does not act, people with Medicare generally will need to be located in a medical facility in a rural area to receive most Medicare telehealth services, with a notable exception for behavioral health telehealth services that can continue to be provided in the patient’s home.

With just a few weeks remaining in this year’s legislative calendar, Congress is considering extensions for Medicare pandemic-era telehealth flexibilities. “It is our sincere hope that Congressional leaders on both sides of the aisle act swiftly to advance a bill extending telehealth flexibilities and get it to President Biden’s desk for signature before year-end,” said Kyle Zebley, senior vice president of public policy for the American Telemedicine Association, in a November 6 statement. “We cannot understate the urgency of extending these flexibilities in order to avoid interrupting needed and often life-saving care for millions of patients.” Bipartisan efforts from both Congressional chambers yielded dozens of bills addressing various short- and long-term proposals regarding telehealth.

Candidates for enactment include:

• H.R. 7623, “Telehealth Modernization Act of 2024” (and related bill S. 3967, “The Telehealth Modernization Act”): These bills would permanently extend certain flexibilities such as allowing (1) rural health clinics and federally qualified health centers to serve as the distant site (i.e., the location of the healthcare practitioner); (2) the home of a beneficiary to serve as the originating site (i.e., the location of the beneficiary) for all services (rather than for only certain services); and (3) all types of practitioners to furnish telehealth services, as determined by the CMS.
• H.R. 4189, “Connect for Health Act of 2023” (and related, identically titled bill S. 2016): These bills would expand coverage of telehealth services under Medicare. Among other provisions, the bills would permanently remove geographic restrictions on originating sites (i.e., the location of the beneficiary) and allow the home of the beneficiary to serve as the originating site for all services, permanently allow federally qualified health centers and rural health clinics to serve as the distant site (i.e., the location of the health care practitioner), and allow CMS to generally waive coverage restrictions during any public health emergency.
• H.R. 8261, “Preserving Telehealth, Hospital, and Ambulance Access Act”: This bill would, among other things, extend key flexibilities through December 2026.
• H.R. 1843, “The Telehealth Expansion Act” (and related bill S1001, “Telehealth Expansion Act of 2023”): These bills would permanently exempt high-deductible health plans from the requirement of a deductible for telehealth and other remote care services.
• H.R. 824, “The Telehealth Benefit Expansion for Workers Act of 2023”: This bill would permanently allow employers to offer stand-alone telehealth benefits to all employees, including those who are eligible for enrollment in their employer’s group health plan.

While President-elect Donald Trump was largely silent on specific telehealth policies during his most recent campaign, he supported increased telehealth access in his first term during the COVID-19 pandemic. But some conservative think tanks — including the Paragon Institute, headed by former Trump economic policy advisor Brian Blase — caution lawmakers not to permanently extend flexibilities, which they say could trigger increased and possibly wasteful spending. Opposing this viewpoint, University of Michigan researchers showed that telehealth did not increase follow-up in-person visits and primary care practices with high telehealth usage did not see a surge in low-value tests and procedures compared to those with less telehealth engagement.

AGG continues to monitor developments in telehealth’s complicated and evolving legislative and regulatory landscape. For more information, please contact AGG Healthcare attorney Lisa J. Churvis.